![]() ![]() There were three resolutely conservative Justices (William Rehnquist, Antonin Scalia, and Clarence Thomas), two conservatives known to occasionally “swing” their votes ( Sandra Day O’Connor and Anthony Kennedy), and four liberals (David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens). The Supreme Court of 2000 was more ideologically diverse than it is today. Gore is a spectre floating over this week’s proceedings. But it’s impossible not to think of them together. Anderson is based on Section 3 (insurrection), and has been scheduled-in advance of Super Tuesday-to avoid ex-post-facto controversy. Gore concerned an election that had already happened, and ultimately revolved around Section 1 of the Fourteenth Amendment (equal protection). “This is going to the Supreme Court.” The two cases have little technical overlap. Gore “popped into my mind,” Magliocca told me. The Colorado Supreme Court had ruled in Anderson’s favor.Īfter January 6th, Bush v. The named plaintiff seeking his disqualification, the former Republican lawmaker Norma Anderson, claims that Trump engaged in insurrection on January 6th. Anderson, which concerns whether Trump can appear on the Republican primary ballot in Colorado. Supreme Court will hear oral arguments in Trump v. (In December, Maine’s secretary of state excluded Trump from the ballot that decision is now on hold.) This week, the U.S. Lawsuits alleging that Trump should be disqualified from Presidential ballots in 2024 have since been filed in some twenty states. “For example, Senator Romney issued a statement saying that today was ‘an insurrection, incited by the President of the United States.’ Senator McConnell described today as a ‘failed insurrection.’ ” If so, Trump might be ineligible to run for office in the future under Section 3, Magliocca continued, but it was “just an academic point for now.” “I find very interesting the use of the word ‘insurrection’ to describe what occurred today at the Capitol,” he wrote that evening, on the law blog Balkinization. The scope of the January 6th attack was still coming into view when Magliocca sat at his desk to parse the day’s events. Less than a month after the paper was published, Section 3 found real-world application for the first time in a hundred and fifty years. Section 3, Magliocca told me, “was written after a lot of bedlam in the streets. The paper argues that, after the Civil War, the courts were somewhat hesitant to apply Section 3, though thousands of Confederate soldiers were disqualified retroactively. “It was really just, Here’s a portion of the Fourteenth Amendment that I know almost nothing about,” he told me.Ī draft of Magliocca’s findings on the insurrection clause was published in December, 2020. to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” He took on this research during Donald Trump’s Presidency, but had no political motivation. ![]() One of his more recent projects has focussed on Section 3 of the Fourteenth Amendment, which provides that no person, “having previously taken an oath . . . Rosen Professor at the McKinney School of Law and a widely published expert on the history and constitutional jurisprudence of Reconstruction. Gore, Magliocca left the law firm to teach at Indiana University, where he joined the Federalist Society. Supreme Court get involved? They don’t have jurisdiction,’ ” Magliocca recalled. Elections are always decided by the state Supreme Court. “At the time, everybody said, ‘This is a question about who won Florida. Election law was a relatively narrow discipline, concerned with voting rights, campaign finance, and redistricting Bush v. He was a Republican who’d graduated from Yale Law School and clerked for the enduring Second Circuit judge Guido Calabresi. Magliocca was a second-year associate at the white-shoe firm Covington & Burling. “I asked if he’d heard anything yet, but he hadn’t.” “There was a TV reporter standing on a box outside to get the building profile in the shot,” Magliocca told me. While the nine Justices deliberated, the country was fixed to television news of “butterfly ballots” and punch-card “hanging chads.” At the courthouse, the scene was quiet. The Florida Supreme Court sided with Gore, so Bush appealed to the United States Supreme Court. Bush and Al Gore were separated by mere hundreds of votes in Florida, and the Bush campaign had sued to stop a recount. ![]() The question of who had won the Presidential election, on November 7th, remained unresolved. In early December, 2000, a young lawyer in Washington, D.C., named Gerard Magliocca stopped in front of the Supreme Court building. ![]()
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