It was an attempt (however feeble and unlikely to succeed) to use non-democratic means to overturn a democratically elected government. Sounds like a textbook coup to me.
It's easy to concentrate on how farcical January 6th was, rather than how high the stakes were - but those stakes were literally who the leader of the free world was, and whether he would have been chosen by "we, the people" or by the use of violence.
"That's the problem with trying to use judicial means to solve political problems."
See also Roe v Wade. Honestly, I believe that if Roe v Wade had never happened, abortion would barely be a culture-war issue at all, and would be something that, if not everyone agreed with 100%, at least wasn't this super-salient identity-politics issue that roused passions and swayed votes. As it is, when a country's political system doesn't allow you to vote for something you want, well that's when normal citizen frustration ferments into something uglier.
And now that Roe v Wade has been repealed, Republicans are no longer shielded from the material consequences of a hardline anti-abortion position - and they are getting punished for it. If Roe v Wade had never existed, voters could have worked all this out decades ago.
It's not clear to me that, in practice, a House-decided election result in 2000 would have conferred more legitimacy on the winner than the Supreme Court decision we actually got. In part that's because GWB didn't really have much of a legitimacy problem in our timeline: a lot of people in the academic/pundit orbit complained about Bush v Gore for a long time, but it is not clear that the general public felt that strongly about it, or that Bush was unable to do anything he could have done if his election were less controversial. In part it's because the House is a less trusted institution, with lower approval ratings, than the Court-- or it certainly was in 2000, anyway-- despite being in theory more responsive to the people.
There are a couple of other differences that make 2000 a tenuous analogy, though. First, Trump's base is far more fanatical than either GWB's or Gore's were. Second, if the Supreme Court were to uphold the CO result (which is very unlikely, IMO) they would be clearly acting against its majority's partisan interest, whereas the Bush v Gore result aligned with that Court majority's partisan sympathies and was thus more open to charges of bias.
To your question of "why do CO courts get to overrule the Senate?" he is basically answering that:
-- state courts decide questions of candidate eligibility for ballots all the time, this is no different
-- Trump got an unimpeachably (hah) fair trial in CO state court according to the usual rules of election-eligibility disputes, he lost, and the CO supreme court is just ratifying the consequences of that trial finding; they're not making any fact finding of their own to justify the disqualification
Now that first premise is certainly questionable, and SCOTUS will almost certainly question it, which is good: we need more nationwide clarity and consistency on exactly who gets to decide when candidates fail legal criteria for eligibility to run for office. But it's not so clear that the answer was, or is, obviously "the Senate alone decides because the president is special and/or insurrection is a special criterion for disqualification".
I think advocates of states rights on the question of qualification for the presidency under the 14th amendment should think really hard about the independent state legislatures doctrine that has been all the rage on the right of late.
Personally, I think that doctrine is insane, but the reason it's insane is that it's flagrantly anti-democratic, not because it advances an absurd-on-its-face reading of the text. To be clear: I think its reading of the text is tendentious, but I feel the same way about the Colorado courts' reading of the 14th amendment, and tendentious isn't the same thing as insane. What makes it insane is its radical departure from the fundamental values of the document it purports to interpret.
Fair point. Certainly having different states determine eligibility for federal office differently makes no sense on the merits. That doesn't mean the Senate has to have the last word but it does mean SCOTUS has to, one way or the other.
You make a good case, Noah. I can see, and take seriously, the argument that the U.S. Supreme Court's decision in Bush v. Gore, arising legally from complaints dealing with equal due process in terms of the counting of votes, was far more invasive that the Colorado Supreme Court's decision in this case, because, as you say, the 14th amendment is pretty clear in this regard. But at this critical moment, insisting upon such fine distinctions are probably more trouble than they're worth. Though I wish, Noah, you would have taken one additional step and answered: should the Colorado Supreme Court have refused to hear the case, perhaps, as you say, on the basis of the Senate's actions back in 2020, when they found Trump--technically, if not substantively--not guilty of insurrection by refusing to convict him in his second impeachment trial?
Seems like the easiest option would have been to affirm the trial court, which found DJT committed conduct that disqualified him but nonetheless dismissed the suit on constitutional grounds. Could have done so with no opinion, too, essentially leaving the question unanswered. Whatever one things about CJ Roberts, he is at least aware that courts must be 100% vigilant about maintaining their legitimacy through sound legal reasoning *and* pragmatic decision making that avoids overly doctrinaire conclusions (Thomas being famously doctrinaire). The Colorado SC has teed up quite a mess and will almost certainly be reversed at SCOTUS.
January 6th was a riot not a coup
It was an attempt (however feeble and unlikely to succeed) to use non-democratic means to overturn a democratically elected government. Sounds like a textbook coup to me.
It's easy to concentrate on how farcical January 6th was, rather than how high the stakes were - but those stakes were literally who the leader of the free world was, and whether he would have been chosen by "we, the people" or by the use of violence.
"That's the problem with trying to use judicial means to solve political problems."
See also Roe v Wade. Honestly, I believe that if Roe v Wade had never happened, abortion would barely be a culture-war issue at all, and would be something that, if not everyone agreed with 100%, at least wasn't this super-salient identity-politics issue that roused passions and swayed votes. As it is, when a country's political system doesn't allow you to vote for something you want, well that's when normal citizen frustration ferments into something uglier.
And now that Roe v Wade has been repealed, Republicans are no longer shielded from the material consequences of a hardline anti-abortion position - and they are getting punished for it. If Roe v Wade had never existed, voters could have worked all this out decades ago.
It's not clear to me that, in practice, a House-decided election result in 2000 would have conferred more legitimacy on the winner than the Supreme Court decision we actually got. In part that's because GWB didn't really have much of a legitimacy problem in our timeline: a lot of people in the academic/pundit orbit complained about Bush v Gore for a long time, but it is not clear that the general public felt that strongly about it, or that Bush was unable to do anything he could have done if his election were less controversial. In part it's because the House is a less trusted institution, with lower approval ratings, than the Court-- or it certainly was in 2000, anyway-- despite being in theory more responsive to the people.
There are a couple of other differences that make 2000 a tenuous analogy, though. First, Trump's base is far more fanatical than either GWB's or Gore's were. Second, if the Supreme Court were to uphold the CO result (which is very unlikely, IMO) they would be clearly acting against its majority's partisan interest, whereas the Bush v Gore result aligned with that Court majority's partisan sympathies and was thus more open to charges of bias.
I suggest reading the opinion and the dissents before writing about it.
FWIW, the best argument I can find in favor of the decision is George Conway's in the Atlantic:
https://www.theatlantic.com/ideas/archive/2023/12/dont-read-the-colorado-ruling-read-the-dissents/676920/
To your question of "why do CO courts get to overrule the Senate?" he is basically answering that:
-- state courts decide questions of candidate eligibility for ballots all the time, this is no different
-- Trump got an unimpeachably (hah) fair trial in CO state court according to the usual rules of election-eligibility disputes, he lost, and the CO supreme court is just ratifying the consequences of that trial finding; they're not making any fact finding of their own to justify the disqualification
Now that first premise is certainly questionable, and SCOTUS will almost certainly question it, which is good: we need more nationwide clarity and consistency on exactly who gets to decide when candidates fail legal criteria for eligibility to run for office. But it's not so clear that the answer was, or is, obviously "the Senate alone decides because the president is special and/or insurrection is a special criterion for disqualification".
I think advocates of states rights on the question of qualification for the presidency under the 14th amendment should think really hard about the independent state legislatures doctrine that has been all the rage on the right of late.
Personally, I think that doctrine is insane, but the reason it's insane is that it's flagrantly anti-democratic, not because it advances an absurd-on-its-face reading of the text. To be clear: I think its reading of the text is tendentious, but I feel the same way about the Colorado courts' reading of the 14th amendment, and tendentious isn't the same thing as insane. What makes it insane is its radical departure from the fundamental values of the document it purports to interpret.
Fair point. Certainly having different states determine eligibility for federal office differently makes no sense on the merits. That doesn't mean the Senate has to have the last word but it does mean SCOTUS has to, one way or the other.
You make a good case, Noah. I can see, and take seriously, the argument that the U.S. Supreme Court's decision in Bush v. Gore, arising legally from complaints dealing with equal due process in terms of the counting of votes, was far more invasive that the Colorado Supreme Court's decision in this case, because, as you say, the 14th amendment is pretty clear in this regard. But at this critical moment, insisting upon such fine distinctions are probably more trouble than they're worth. Though I wish, Noah, you would have taken one additional step and answered: should the Colorado Supreme Court have refused to hear the case, perhaps, as you say, on the basis of the Senate's actions back in 2020, when they found Trump--technically, if not substantively--not guilty of insurrection by refusing to convict him in his second impeachment trial?
Seems like the easiest option would have been to affirm the trial court, which found DJT committed conduct that disqualified him but nonetheless dismissed the suit on constitutional grounds. Could have done so with no opinion, too, essentially leaving the question unanswered. Whatever one things about CJ Roberts, he is at least aware that courts must be 100% vigilant about maintaining their legitimacy through sound legal reasoning *and* pragmatic decision making that avoids overly doctrinaire conclusions (Thomas being famously doctrinaire). The Colorado SC has teed up quite a mess and will almost certainly be reversed at SCOTUS.