They want everything

Demanding unanimity is, like demanding an apology, a sure sign BS is going down

(Psst, subscribers — my Monday edition will be super-brief, as it’s Christmas Day and who’ll have time, so please accept this early edition as my holiday treat.)

The Colorado Supreme Court decision to disqualify Trump from the state ballot on the grounds of Section 3 of the U.S. Constitution’s Fourteenth Amendment has conservatives (and milquetoasts like Jonathan Chait) in a froth — and also in a dilemma. But some of their operatives have found a way to try and turn it into an opportunity.

Conservatives were once upon a time accustomed to scream about black-robed masters on high courts whenever such courts ruled in ways of which they disapproved — usually because they expanded the rights of ordinary Americans. That strategy lost salience when 1.) it became obvious that Americans approved of having abortion, gay marriage, and other rights of which conservatives disapproved protected, and didn’t find it tyrannical at all, and 2.) the Federalist Society’s project to wingnuttize the judiciary was sufficiently successful that they were, in effect, the black-robed masters.

Also people began to notice and, as the multiple abortion-rights plebiscite victories since Dobbs show, they didn’t like the new black-robed masters very much.

With Colorado, conservatives have a cause they could plausibly portray as a liberal judiciary taking rights away from the people — except polls show the people are very much OK with Trump not being allowed to run. (If you don’t like the dodgy YouGov insta-poll, go back and see what earlier, better polls have showed all along.) They know what they saw on January 6.

This leaves conservatives to represent the MAGA goons who bay for blood every time Trump suffers a legal consequence as the true "people” whose disenfranchisement must be stopped, and to argue their rights are superior not only to those of most Americans but also to an honest-to-God Constitutional prescription. This is their version of the famous “penumbra”: Originalist on everything except that which discomfits Republicans.

You see all that in Samuel Moyn’s two recent articles denouncing the decision and begging SCOTUS to reverse. The first of these at wingnut pub Compact is hairier than the version that later appeared as a New York Times op-ed.

Moyn claims a concerted liberal movement to remove Trump by fair mean or foul (notwithstanding the “liberal” establishment has bent over backwards for the guy all along) — and “after the collapse of Robert Mueller’s investigation” they had a choice:

…figuring out how to appeal to enough voters to forge a durable liberal majority — Joe Biden clearly didn’t manage in 2020 — or trying again to seek a quick fix or short cut that would save liberals the trouble of winning.

“Durable liberal majority [that] Joe Biden clearly didn’t manage in 2020” is very, very clearly a way of winking at the rubes who are still taken in by the stolen election scam — because after the Republican reversals of the 2022 election, it can only mean that liberals didn’t truly win in 2020 at all.

Moyn’s Times version is smoother, of course (“Like many of my fellow liberals, I would love to live in a country where Americans had never elected Mr. Trump…” gotta put some lube on it for the “liberal” media!), but also features a new idea: “The Supreme Court Should Overturn the Colorado Ruling Unanimously.”

Once again Moyn mourns the lost rights of the insurrectionists and even suggests if the decision isn’t reversed they’ll storm the Capitol again (“it is not obvious how many would accept a Supreme Court decision that erased Mr. Trump’s name from every ballot in the land…”) and it’ll be all your fault, libtards!

But despite his obvious animus, Moyn has to play healer for the Times people, so he suggests a simple victory, voted by Trump’s Justices plus bribery magnets Clarence Thomas and Sam Alito plus the Chief, while expected, will not do — the liberals (you good people out there in Timesland!) must agree or else you’ll be the dividers!

In the Nixon era, the justices were shrewd enough to stand together in delivering their decision: It was handed down 8-0 [in U.S. v. Nixon], with one recusal. In our moment, the Supreme Court must do the same.

Gotta admit, he’s got nerve.

This will require considerable diplomacy from Chief Justice John Roberts, and it will define his stewardship as profoundly as cases such as Dobbs v. Jackson Women’s Health Organization, in which his effort to herd his colleagues into consensus failed.

Don’t let the Court make the same mistake we spent decades engineering with Dobbs!

In this situation, unlike that one, it will require him to convince his liberal colleagues who might otherwise dissent. For their part, they ought to be able to anticipate the high and unpredictable costs of presuming that judges can save a nation on the brink of breakdown.

“High and unpredictable costs” means Insurrection Boogaloo II—This Time With Better Prep. Let it be on your head, liberal bitch Justices!

Now, I had read a version of this blarghument on Friday from Peggy Noonan (“Not a prediction but a hope: that the decision be unanimous. That it not be open to suspicions of partisan hackery, that it show unity…”), but at the time I thought, ah, that crazy old bint, leave it to her to elevate rightwing talking points into a deranged fantasy!

But now we have a Yale law professor pushing it, and it’s all the rage at the top of the prestige press: it has been picked up by the Washington Post’s Ruth Marcus (who, hilariously, asks for “an 8-0 court with Justice Clarence Thomas recusing himself”) among others.

When lower courts issued decisions that arguably disenfranchised more Americans that just the ones who would kill to install their oafish leader — e.g. overturning the Affordable Care Act, banning abortion, outlawing staff vaccine mandates in hospitals, etc. — none of these people cried to the Supreme Court for a unanimous verdict to send a message to the citizenry. But by putting Sotomayor, Kagan, and Jackson on the spot, they hope to make them look like spoilers and thus further demonize their opposition.

Given, as I mentioned, the actual beliefs of Americans — the ordinary majority who couldn’t care less about Trump, and the minority who couldn’t care less about democracy — I’m not sure how much effect it will have. But the intent is obvious.