Examining the Supreme Court’s Recent Rulings Regarding Trump

And How Those Rulings Are Consistent With My Prior Predictions and Analyses Regarding That Court (Part I)

Gang,

I. Introduction

Over the past couple of weeks or so, the Supreme Court has rendered rulings in two cases in which Trump is a party. Many observers and Americans in general have expressed outrage and fear over those rulings.

However, in this fifth edition of my Contemplating Coup Convictions (CCC) newsletter and in an upcoming edition, I will explain, among other things:

• how the result and reasoning upon which all nine justices agreed in the Court’s disqualification decision were correct;

• how that result and reasoning, as well as the Court’s rulings in the immunity case, are consistent with the predictions and analyses I put forth in previous CCC newsletter editions, and on the “About” page on my CCC Substack website;

• how there is another factor which I have not yet mentioned in any of the editions of my CCC newsletter, which I have never read or heard anyone else mention anywhere, but which may have played a key role in the disqualification decision;

• how portions of the majority’s “per curiam” opinion in the disqualification case which four of the justices did not endorse may not constitute, or may not always constitute, the law of the land; and

• how the rulings in the immunity case may turn out to harm Trump more than help him.

Headings II through VII of today’s newsletter will focus on the Court’s decision on March 4 in the disqualification case. The upcoming edition will focus on the Court’s rulings on February 28 on the immunity issue in the D.C. federal prosecution.

Have you heard that, based on responses given to pollsters late last month, one might think that “. . . Americans Have a 'Collective Amnesia About Trump . . . It’s only been three years, but memories of Mr. Trump’s presidency have faded and changed fast”? I will examine that subject in a future CCC newsletter edition. But the text under Heading V below–which makes up almost half of this CCC newsletter edition–in the course of supporting the inquiry framed by that heading, provides important details of what happened when Trump was running for office; while he was in office; since he left office; and how all those detailed events relate to each other. So you, or someone you know, who believes that they may be suffering from this alleged “collective amnesia” may find that the text under that heading both refreshes the reader’s recollection, and provides important information about which the reader may not have previously known.

After I have completed the discussion of the disqualification decision in today’s edition, I will end that edition under Heading VIII by answering the trivia question I posed under Heading III in my fourth CCC newsletter edition (which I posted on February 28) concerning the photograph contained in that earlier edition, and I will include a new photograph and a new question as well.

N.B.: YOUR EMAIL PROVIDER MAY DECIDE THAT, BECAUSE OF THE LENGTH OF THIS EMAIL, THE EMAIL WILL BE “CLIPPED.” ALL YOU HAVE TO DO TO SEE THE ENTIRE EMAIL IS CLICK ON “VIEW ENTIRE MESSAGE” NEAR THE BOTTOM OF THE EMAIL.

---

For your assistance, I will now lay out a table of contents of the various headings used in this edition. Of course, emails do not have pages, so the table of contents will not include references to page numbers on which each of the headings begins.

Here, then, is the table of contents:

I. Introduction

II. Why Both the Result and the Reasoning on Which All Nine Justices Agreed in the Disqualification Case Were Correct

A. In General

B. The Venue and Timing of the Filing of the Challenges to Trump’s Being Placed on the Ballots in Various States

III. How The Predictions in My Non-Substack Trump Newsletter on December 20 of Last Year–to Which I Referred in Item C.2.c.ii.4 in the “About” Page on My CCC Substack Website–Twice Hit the Bullseye in Terms of What All Nine Justices Agreed Upon in the Disqualification Case

IV. How the Positions on Which All Nine Justices Agreed in the Disqualification Case Are Consistent With What I Wrote in My First and Third CCC Newsletter Editions Concerning the Correct Way to Understand How Supreme Court Justices Think and Act

V. How the Positions on Which All Nine Justices Agreed in the Disqualification Case Are Consistent With an Additional, Very Important Factor Which I Mentioned to People Before the Disqualification Decision Was Issued, But Which I Did Not Mention in My Substack Newsletter Editions Until Now

VI. How the Portions of the Disqualification Decision Which Only Five Justices Agreed Upon Are Improper, But Nevertheless Are Consistent With My Views, As Discussed Under Headings III Through V Above and in the Inaugural Edition of My CCC Newsletter, Concerning the Correct Way to Understand How Supreme Court Justices Think and Act

A. What the Five Justices Did in Their “Per Curiam” Opinion in the Disqualification Case Which the Other Four Justices Disagreed With

B. The Search for Answers to The $64,000 Question of Why the Five Justices Wrote the Excess Language

C. Reasonable Answers May Be Found in the Inaugural Edition of My CCC Newsletter

VII. How Portions of the Disqualification Decision Which Only Five Justices Agreed Upon May Not Constitute, or May Not Always Constitute, the Law of the Land

A. Distinguishing ‘Holdings’ From ‘Dicta’

B. What Portions of the Per Curiam Opinion in the Disqualification Case Constitute ‘Holdings,’ and What Portions Constitute ‘Dicta’?

VIII. Photographs

_______________________

II. Why Both the Result and the Reasoning on Which All Nine Justices Agreed in the Disqualification Case Were Correct

A. In General

Pages 11 and 12 in the Supreme Court majority’s “per curiam” slip (advance) opinion in Trump v. Anderson do a fine job of explaining why it would result in chaos and gross unfairness were each state permitted to decide on its own whether a presidential candidate had engaged in insurrection and thus must be excluded from that state’s presidential ballot(s).

Further support regarding the correctness of the results and reasoning in that opinion can be found in the fact that even the Court’s three liberal justices (as well as the ninth justice) agreed with that result and that reasoning.

Moreover, prior to the oral argument in the disqualification case on February 8, many Trump opponents predicted that the Supreme Court would, and even should, not allow individual states to keep Trump off the ballot, notwithstanding that such opponents may have also opined or believed that Trump did engage in an insurrection and should have to answer for that in some manner. See, e.g., this piece this piece written by the New York Times’s primary Supreme Court reporter Adam Liptak and published in late December.

And, especially having had the opportunity to listen to the oral argument (or read its transcript) and read the justices’ opinions in Trump v. Anderson, many anti-Trumpers among the news media and among other experts have continued to embrace the result and reasoning that all nine justices endorsed in that case. In particular I note an editorial, and an opinion piece written by columnist/attorney Ruth Marcus, both published by the Washington Post after the Court’s decision was issued.

Additionally, as I noted in the final, December 20, 2023 edition of my non-Substack Trump newsletter (see Heading III below)--which newsletter I began before Trump was elected in 2016--in the Colorado Supreme Court “Trump's opponents got the votes of only four out of the seven state supreme court justices, all seven of whom were appointed by Democratic governors.”

Finally, if you remain unconvinced of the correctness of the result reached by the Supreme Court in the Colorado case–notwithstanding the argument contained on pages 11 and 12 of the per curiam opinion and the bipartisan nature of the disqualification decisions in that case in favor of Trump--then ask yourself this question:

How would I feel if a Republican presidential candidate won in the Electoral College in 2024 or in a subsequent election because, in one or more swing states, a majority composed solely of Republican-appointed (or Republican-elected) state supreme court justices ruled that the presumptive Democratic candidate was not qualified to be president because (1) s/he had engaged in an insurrection, (2) s/he was not 35 years old, or (3) she was not born in the United States, and I believed that the ruling[s] was [or were] baseless? Would I simply say to myself, “Well, the states should have the right to decide such matters for themselves, so I am in no position to complain even though one or more state supreme courts that are dominated by Republican selectees, have, on specious grounds, placed the Republican candidate in the White House over the will of the voters”?

B. The Venue and Timing of the Filing of the Challenges to Trump’s Being Placed on the Ballots in Various States

Many people, such as New York Times columnist/attorney David French, are unhappy with the Supreme Court’s disqualification decision because, in the words of the headline of French's piece, “The Supreme Court Just Erased [the] Part of the Constitution” which bars insurrectionists from holding federal office.

Initially, it must be noted that Special Counsel Smith had the option, which he apparently opted against exercising, of seeking from the D.C. federal grand jury a count in the indictment charging Trump with “Rebellion or insurrection” under 18 U.S.C. Section 2383. That statute simply provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

As discussed in detail under the “Third” item under Heading V below, there appeared to have been strong arguments in favor of seeking such a count in the indictment charging Trump under Section 2383, on top of the argument that a timely conviction would have made Trump ineligible to return to the White House in 2015 (or thereafter).¹

More generally, it is important to keep in mind that, as French acknowledges, it was only the five Republican-appointed justices who took credit for the writing of the “per curiam” opinion who accomplished the claimed erasure. (See Heading VI.A below.) The avenue which had always seemed to me to be the most reasonable for citizens trying to keep Trump off the ballot because of his having taken part in an insurrection, is one which would have avoided the concerns which influenced all nine justices in the Colorado case, and also would have avoided most of the pressure put on the various judges involved to obtain a final resolution before the Republican primaries and caucuses began in January of this year: filing lawsuits in federal courts long before the state challenges began in the late summer of last year.

Accordingly, in the final, December 20, 2023 edition of my original Trump newsletter (see Heading II.A above and Heading III below), I wrote the following regarding the disqualification litigation in the Colorado courts:

There are overriding concerns . . . which have rarely if ever been mentioned in the news media or the courts, but which I recognized as soon as the news media a few months ago began covering the issue of Trump's possible disqualification. . . .

One of those overriding concerns is that, notwithstanding that there may be more lawyers in this country than there are in the remainder of the world, and notwithstanding all of the evidence against Trump that the House select committee on January 6 laid before the public on television last year, no lawyer thought that a court challenge to Trump's qualifications to seek reelection was sufficiently meritorious so as to actually institute such a challenge until over two and one-half years after Trump left office, and until almost a year had passed since Trump announced his candidacy. Moreover, as a result of that extreme delay, only a few weeks are left before Republican caucuses and primaries begin.

Another of those overriding concerns is that the U.S. Supreme Court will almost certainly want to have a single ruling on the disqualification issue that will cover the entire country, and it is very doubtful that the Court will be willing or able to rule in time that the trial that was held in a single state court was adequate to satisfy all federal substantive and procedural constitutional and other legal requirements for an issue as weighty as disqualifying a person from running for president in every state on the basis of the person's allegedly having been involved in an insurrection (putting aside the fact that the person in question is a former president who is the hands-down front-runner for his party's nomination).

While there may well have been technical legal issues which could have created some temporary obstacles to filing in the federal courts in an optimally timely manner, I presume that nevertheless there would have been a decent chance that a federal circuit court would have been willing to knock Trump off the ballot nationwide had there been (1) assiduous attempts to file in a federal district court in a timely manner and (2) legal representation from the outset by the sort of legal talent that ultimately went before the Supreme Court in the Colorado case.

Moreover, it is reasonably possible that, in such a situation, with an appropriate level of media attention and top-notch lawyering by counsel for the parties and amici throughout, with little or no side-show challenges in the states which would only serve as distractions, and with full and fair litigation and strong opinions issued by the federal district and circuit courts, a majority of the Supreme Court justices would have let stand a federal circuit court ruling knocking Trump off the ballot in every state. Contrast this with this. Of course, the extent of that possibility would be subject to the new factor which I identify and examine under Heading V below.

Fortunately, as I discuss in detail under Heading VII below, it remains entirely possible that, notwithstanding what those five justices wrote in their majority opinion in the Colorado case, at some point the type of timely challenge in the federal courts that I had envisioned, and continue to envision, will be available to prevent insurrectionists from holding federal office even without the intervention of Congress.

Finally, I’ll note here that in a future edition of my CCC newsletter, I will examine yet another vital situation in which persons who oppose Trump--had they acted in a timely manner--could have obviated the problems we are experiencing now concerning the desire to have the Trump’s criminal trials tried and completed before Election Day in November: Attorney General Merrick Garland should have (1) appointed Special Counsel Smith long before the date he was appointed--which was one year and ten months after Trump left office--and (2) had the FBI promptly and diligently investigate the apparent organizers of the attempted coup prior to the appointment of a special counsel. Garland, whose job it is to appoint special counsels when appropriate and who oversees the entire Justice Department, including the FBI, while clearly blameworthy (at 20:45 to 22:36), is hardly the only person at fault in this connection.

III. How The Predictions in My Non-Substack Trump Newsletter on December 20 of Last Year–to Which I Referred in Item C.2.c.ii.4 in the “About” Page on My CCC Substack Website–Twice Hit the Bullseye in Terms of What All Nine Justices Agreed Upon in the Disqualification Case

Item C.2.c.ii.4 on the "About" page on my CCC newsletter Substack website noted that

I wrote in my December 20, 2023 edition [of my non-Substack Trump newsletter]: “I'm sorry to burst people's balloons, but I feel that you should know right now that I will be quite surprised if the United States Supreme Court permits any state to keep Trump off the ballot next year.” I then proceeded to supply reasoning to support that view.

(Emphasis added.)

Part of the reasoning I provided in that December 20 edition of that newsletter--the headline to which was “If I were you, I wouldn't get too excited about yesterday's Colorado Supreme Court decision”–-was that “the U.S. Supreme Court will almost certainly want to have a single ruling on the disqualification issue that will cover the entire country.”

Accordingly, I correctly predicted in that edition the result which all nine justices agreed upon in Trump v. Anderson: that states cannot decide on their own whether a presidential candidate is disqualified on the ground of his/her having taken part in an insurrection.

Moreover, the portion of the reasoning I provided in that December 20 newsletter edition which I quoted above is the reasoning with which all nine justices agreed in reaching their result: that it would be unworkable and undesirable to allow each state to decide on its own whether or not Trump could be on the ballot.²

Of course, I’m not the only one who correctly made those predictions.( See Heading II.A above.) For example, as I explained in Item C.2.c.ii.4 in the “About” page of my CCC Substack newsletter website:

Nine days after I issued that [December 20] edition, the New York Times published online a piece in which its Supreme Court journalist, Adam Liptak, said pretty much the same thing that I had written in that December 20 newsletter edition.

IV. How the Positions on Which All Nine Justices Agreed in the Disqualification Case Are Consistent With What I Wrote in My First and Third CCC Newsletter Editions Concerning the Correct Way to Understand How Supreme Court Justices Think and Act

The inaugural edition of my CCC newsletter (posted January 8) bore the headline and subheadline “Reasons why the U.S. Supreme Court is less likely to rule in Trump's favor in 2024 than you may think--Especially reasons that the news media doesn't seem to even be mentioning.” Under Heading B in that edition, I listed reasons which the news media and other experts had been identifying before I posted that edition.

Under Heading C in that edition, I listed additional reasons which, with one exception, I had not read or heard the news media or other experts mentioning. Those additional reasons were “[t]he desire of the justices not to be citizens of a dictatorship if Trump is reelected this year” and “[t]he reasonable fear of the justices that if Trump is reelected this year, they will have to rule in Trump’s favor on the legality of a host of repressive, violent, discriminatory, and/or patently unlawful measures taken by Trump, his administration, and/or his supporters.”

So one might wonder why I wrote what I wrote in that inaugural edition–especially what I wrote under Heading C thereof--in the wake of my having posted on the “About” page on my CCC Substack website my confident prediction that Trump would prevail in the Supreme Court in the Colorado disqualification case. There are at least four explanations for this situation which, at first blush, some situation might view as involving an inconsistency.

First, as the headline to the inaugural edition announced, the subject of the edition was “Reasons why the U.S. Supreme Court is less likely to rule in Trump's favor in 2024 than you may think.” Neither the headline nor the body of that edition stated that the Supreme Court is unlikely to rule in Trump’s favor in general, much less in every case in which Trump is a party.

Second, under Heading B in the inaugural edition, where I identified reasons as to which I had read or heard a number of other observers who agreed with me, the very first such reason I listed was “[t]he Supreme Court’s desire not to appear to be repeating what it did in the context of the 2000 presidential election.” In 2000, the Supreme Court had already incurred the wrath of at least half of American voters, and more than half of American commentators, when it essentially ignored the votes of the majority of Americans who had chosen Gore as the next president.

So, in 2024, the Court would hardly want to issue a decision which would prevent almost half of American voters from being able to vote for the person whom they wanted to be president. Issuing such a decision would not atone for what Republican-appointed justices did in 2000–and more recently, as in the 2022 decision overruling Roe v. Wade--in the eyes of most Democrats, but would certainly incur the anger of a great majority of Republicans. The Court’s favorability rating would plunge far below its already abysmal, and record, low.

Third, especially in light of those two aforementioned items, it should hardly come as a surprise that I would predict that the Court would rule in Trump’s favor in a case in which the failure to do so would be an objectively incorrect decision (see Headings II and III above).

Fourth, and finally, under Heading II.B.2 in my third CCC newsletter edition (posted on February 12), I explained why, if possible, the Court would want to issue decisions in both the disqualification case and the immunity case in the same manner in which the Court issued decisions in two earlier momentous cases, Brown v. Board of Education and United States v. Nixon: employing opinions which were unanimous, at the very least in terms of the result reached, and using “per curiam” opinions to further emphasize the level of agreement among the justices.

Consistent with that prediction, the Court in the disqualification case managed to obtain unanimity, not only in the result reached, but in a justification for that result. (See Heading II.A above.)

Moreover, the majority in that case employed a “per curiam” opinion, and the three liberal justices issued an opinion signed by all three of them–in contrast with the normal method of issuing majority, concurring, or dissenting opinions in the Supreme Court, where one justice is identified as the author of the opinion, and one or more additional justices may sign off on that opinion. As I noted under that Heading II.B.2 in my third CCC newsletter edition, the Court had originally intended to have all nine justices identified as the authors of the Nixon opinion, but then ultimately Chief Justice Burger insisted that he would be the only identified author of the unanimous decision. It should also be noted that Justices Souter, O’Connor, and Kennedy were all identified as the authors in the famous “plurality” opinion in Planned Parenthood v. Casey, which preserved Roe v. Wade in a modified form for 30 years.

V. How the Positions on Which All Nine Justices Agreed in the Disqualification Case Are Consistent With an Additional, Very Important Factor Which I Mentioned to People Before the Supreme Court Issued Its Disqualification Decision, But Which I Did Not Mention in My Substack Newsletter Editions Until Now

Well before I posted the December 20 edition of my non-Substack Trump newsletter (see Heading III above), it was clear to me that there was a very special reason why the Supreme Court would not rule that states could bar Trump from being on the ballot. This, despite the fact that I not read or heard ANYONE ANYWHERE mention that reason. Indeed, I felt confident that no one would do so in the news media, at least not until the Court made a final ruling on the disqualification issue. Prior to writing today’s CCC newsletter edition, I had only mentioned that reason in conversation with other people.

That reason is that, at the time the justices would render that decision, they surely would be aware that if they allowed individual states to knock Trump off the ballot, then the justices, and perhaps their families and staffs, likely would receive explicit or implicit threats to their physical safety and perhaps even to their lives. Moreover, as discussed under Headings II.A and III above, it was obvious to me and many other observers before oral argument was held in the disqualification case that if the Court was going to knock Trump off the ballot in one state, then it would knock him off in every state. And if the Court were to knock him off in every state, then it would be highly reasonable for the justices, their families, and their staffs to fear (a) that for an extended period of time, they would be bombarded with explicit or implicit threats to their safety and even their lives, and (b) that it would be at least reasonably likely that there would be one or more attempts, perhaps even successful attempts, to carry out some of those threats.

Why was I so confident, and why do I remain so confident, about all this? "Fasten your seat belts. It's going to be a bumpy [fl]ight" through the fifteen reasons I will now set forth.

First, while campaigning for the presidency in 2015 and 2016, Trump publicly:

• told law enforcement officers that when they place arrestees inside police cars, they have the option of abstaining from protecting the arrestees from sustaining injuries to their heads;

• encouraged attendees at his rallies to “knock the crap out of” people who heckle him;

• made statements at a campaign rally that were quite reasonably viewed by many as suggesting that his opponent, Hillary Clinton, should be assassinated to prevent her from appointing Supreme Court judges who would vote to water down Second Amendment protections; and

• stated during a campaign rally, “‘I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK? . . . It's, like, incredible.’"

Second, while in office prior to January 6, 2021, Trump:

• stated that if he sent the military to keep migrants from entering our southern border, he would want military personnel to respond to migrants throwing rocks at them as though the migrants had rifles;

• reportedly “in private meetings raised the prospect of shooting migrant families seeking asylum at the border”; and

• toward the end of an hour-long recorded telephone conference call four days before the Capitol attack--during which the Georgia Secretary of State and his attorney repeatedly rebuffed Trump’s attempts to have them take part in his scheme to overturn Biden’s election victory on the basis of the lie that the election was fraudulent--told them both that they were in danger of being criminally prosecuted.

I mention the fear of wrongful criminal prosecutions aroused by threats made by a person who is, or may be, in a position to see that the threats are carried out, because that fear, especially when conjoined with the even greater fear of wrongful incarceration or even execution, can deter a person from doing what s/he should be doing more than can anonymous, vague threats of physical harm.³

Third, on pages 83 to 85 of the Introductory Material to the Final Report of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, that committee laid out the details of its case for its referring Trump to the Department of Justice for investigation for having committed the crime of inciting, assisting, or giving aid and comfort to an insurrection as defined and prohibited by 18 U.S.C. § 2383. Here, at length, are excerpts:

A Federal court has already concluded that President Trump’s statements during his Ellipse speech were “plausibly words of incitement not protected by the First Amendment.” Moreover, President Trump was impeached for “Incitement of Insurrection,” and a majority of the Senate voted to convict, with many more suggesting they might have voted to convict had President Trump still been in office at the time.

. . .

. . . President Trump was directly responsible for summoning what became a violent mob to Washington, DC, urging them to march to the Capitol, and then further provoking the already violent and lawless crowd with his 2:24 p.m. tweet about the Vice President. Even though President Trump had repeatedly been told that Vice President Pence had no legal authority to stop the certification of the election, he asserted in his speech on January 6 that if the Vice President “comes through for us” that he could deliver victory to Trump: “if Mike Pence does the right thing, we win the election.” This created a desperate and false expectation in President Trump’s mob that ended up putting the Vice President and his entourage and many others at the Capitol in physical danger. When President Trump tweeted at 2:24 p.m., he knew violence was underway. His tweet exacerbated that violence.

During the ensuing riot, the President refused to condemn the violence or encourage the crowd to disperse despite repeated pleas from his staff and family that he do so. . . . President Trump refused repeatedly, for multiple hours, to make a public statement directing his violent and lawless supporters to leave the Capitol. President Trump did not want his supporters (who had effectively halted the vote counting) to disperse. . . . President Trump did not want to provide security assistance to the Capitol during that violent period. This appalling behavior by our Commander in Chief occurred despite his affirmative Constitutional duty to act, to ensure that the laws are faithfully executed.

The Committee believes that sufficient evidence exists for a criminal referral of President Trump for “assist[ing]” or “ai[ding] {sic} and comfort[ing]” those at the Capitol who engaged in a violent attack on the United States. The Committee has developed significant evidence that President Trump intended to disrupt the peaceful transition of power and believes that the Department of Justice can likely elicit testimony relevant to an investigation under Section 2383.

For example, Chief of Staff Mark Meadows told White House Counsel Pat Cipollone that the President “doesn’t want to do anything” to stop the violence. Worse, at 2:24 p.m., the President inflamed and exacerbated the mob violence by sending a tweet stating that the Vice President “didn’t have the courage to do what should have been done.’’ The President threw gasoline on the fire despite knowing that there was a violent riot underway at the Capitol. Indeed, video and audio footage from the attack shows that many of the rioters specifically mentioned Vice President Pence. And immediately after President Trump sent his tweet, the violence escalated. Between 2:25p.m. and 2:28 p.m., rioters breached the East Rotunda doors, other rioters breached the police line in the Capitol Crypt, Vice President Pence had to be evacuated from his Senate office, and Rep. McCarthy was evacuated from his Capitol office.

Evidence developed in the Committee’s investigation showed that the President, when told that the crowd was chanting “Hang Mike Pence,” responded that perhaps the Vice President deserved to be hanged. And President Trump rebuffed pleas from Rep. Kevin McCarthy to ask that his supporters leave the Capitol, stating “Well, Kevin, I guess these people are more upset about the election than you are.” After hours of deadly riot, President Trump eventually released a videotaped statement encouraging the crowd to disperse, though openly professing his “love” for the members of the mob and empathizing with their frustration at the “stolen” election. President Trump has since expressed a desire to pardon those involved in the attack.

Both the purpose and the effect of the President’s actions were to mobilize a large crowd to descend on the Capitol. Several defendants in pending criminal cases identified the President's allegations about the “stolen election” as the key motivation for their activities at the Capitol. Many of them specifically cited the President’s tweets asking his supporters to come to Washington, DC on January 6. For example, one defendant who later pleaded guilty to threatening House Speaker Nancy Pelosi texted a family member on January 6th to say: “‘[Trump] wants heads and I'm going to deliver.” Another defendant released a statement through his attorney, stating: “‘I was in Washington, DC on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my President and the commander-in-chief. His statements also had me believing the election was stolen from him.”

As the violence began to subside and law enforcement continued to secure the Capitol, President Trump tweeted again, at 6:01 pm to justify the actions of the rioters: “These are the things and events that happen,” he wrote, when his so-called victory was “so unceremoniously & viciously stripped away. . . .” When he wrote those words, he knew exactly what he was doing. Before President Trump issued the tweet, a White House staffer cautioned him that the statement would imply that he “had something to do with the events that happened at the Capitol”—but he tweeted it anyway. The final words of that tweet leave little doubt about President Trump’s sentiments toward those who invaded the Capitol: “Remember this day forever!”

(Endnotes omitted. Brackets and boldface ellipsis in original.)

Fourth, since Election Day in November of 2020, acts of serious harassment, usually in the form of explicit or implicit threats of violence, have been made against public officials and other public employees--and sometimes against their family members--who are involved in the election process, essentially all of which acts have apparently been committed by Trump supporters, and have resulted in the decisions of a number of the employees to resign or to not seek reelection or reappointment. See, e.g., this, that, and the other.

Fifth, since the beginning of 2021, a number of members of Congress, as a result of explicit or implicit threats to their safety or the safety of their family members, reportedly have voted against impeaching Trump, or against certifying Biden’s election victory, or in favor of having Jim Jordan as Speaker of the House. See, e.g., this, that, and the other.

Sixth, since leaving office, Trump has publicly stated orally or in writing, in some cases on numerous occasions:

• “‘If you come after me, I’m coming after you” (see this), and

• that if reelected in 2024, he will:

  • take revenge against his enemies, including using the Department of Justice to investigate and prosecute them (see this), and has already named some such targets (see Endnote 10 hereto);

  • toward that end and others, he will ensure that only persons who will give him unquestioning loyalty will be in the federal government at essentially all levels (see this); and

  • pardon those who have been convicted, or are being prosecuted, for their parts in the January 6, 2021 attack on the Capitol, calling those persons “political prisoners” and “hostages” (see this) .

Seventh, in a number of federal and state criminal and civil cases in which Trump is a party which are pending or have recently been completed:

• a party opposing Trump has moved for one or more gag and/or protective orders against Trump, documenting prior or ongoing situations in which Trump’s vicious, incendiary public statements have constituted, or have led to, explicit or implicit threats of violence against the persons, families, and/or staff of judges, prosecutors, witnesses, and members of jury pools;⁴

• a court has issued such an order;⁵

• a court has held Trump in contempt for violating such an order;⁶ and

• a court has imposed a gag order on Trump’s counsel.⁷

Eighth, according to Wikipedia,

There have been widespread doxxing, swatting, and violent threats made against politicians who have attempted to remove Trump from the ballot. On December 29, 2023, [Maine Secretary of State Shenna] Bellows [who had earlier ruled that Trump could not be on the Maine ballot because of his participation in an insurrection] was swatted.

In the early hours of January 2, 2024, a man broke into the Colorado Supreme Court [which previously had ruled, 4-3, that Trump was disqualified from being on that state’s ballot], opened fire, then surrendered to police. No one was injured, but the building was damaged. Though multiple threats had been made against the four Colorado justices who ruled to disqualify Trump, the Colorado State Patrol suggested that this man may have acted alone. The man's motivations were not immediately publicized.

(Endnotes deleted.)

Ninth, over the past two years, a number of violent acts, or attempts at such acts–most of which were connected to Trump’s public posts and oral public statements--have been made against current or former officials, or their family members, at the absolute highest levels of the federal government, including the following:

• In June of last year, a man wanted for arrest in connection with the January 6 Capitol riot was arrested, while in the possession of firearms, in former President Obama’s neighborhood when the man began live-streaming in the area shortly after resharing a Truth Social post from Trump in which Trump posted what he claimed was Obama’s address.

• As of March 16 of last year, when an indictment in Manhattan was looming over Trump, Trump had already spent a significant portion of the preceding two years attacking Manhattan District Attorney Alvin Bragg, who is Black, calling him a “racist” who was trying to harm Trump.

  • On or about March 18 of last year, a Utah man named Craig Robertson posted on Truth Social details of his plan to murder Bragg.

  • On March 23 of last year, Trump shared an article on Truth Social that used an image of Trump holding a baseball bat next to a photo of Bragg. Hours later, Trump warned on Truth Social of the potential for "death and destruction" should Bragg's investigation result in a criminal charge against Trump.

  • On March 30 of last year, Bragg obtained an indictment against Trump.

  • As of August 9 of last year, for months Trump had been blaming Biden and Attorney General Merrick Garland for the federal “witch hunt” investigations and prosecutions against him. A tip about Robinson’s threat to kill Bragg had led the FBI to investigate Robinson, who ultimately also made death threats against Biden . In early August of last year, Robinson was killed by an F.B.I. agent when it appeared that Robinson was about to execute a plan to kill Biden.

• According to Wikipedia:

  • “On October 28, 2022, far-right conspiracy theorist David DePape attacked Paul Pelosi, the then-82-year-old husband of Nancy Pelosi, the 52nd Speaker of the United States House of Representatives. He beat Paul Pelosi with a hammer during a home invasion of the couple's Pacific Heights, San Francisco residence, leaving him seriously injured. Pelosi required surgery for a fractured skull.”

  • “San Francisco police arrested DePape, age 42, at the scene. He planned to take Speaker Pelosi hostage and interrogate her. Prosecutors believe the attack to be politically motivated. DePape had a history of mental health issues and drug abuse; before the attack, he had embraced various far-right conspiracy theories, including QAnon, Pizzagate, and Donald Trump's false claims of a stolen election in 2020.“

  • “Within days, prominent right-wing figures, including former president Donald Trump, shared disinformation and misinformation about the attack, casting doubt on the assailant's motives and claiming that the attack was a false flag operation.”

  • “DePape was convicted of the federal charges on November 16, 2023.”

  • DePape “testified that he believed the mainstream media ‘were all lying about Trump.’"

  • “Republican congressman Clay Higgins (of Louisiana) and Republican congresswomen Marjorie Taylor Greene (of Georgia) and Claudia Tenney (of New York), as well as Donald Trump Jr. and David Clarke Jr., all disseminated other false claims about the attack, such as claims that Pelosi knew the attacker or was involved in male prostitution. . . . Days after the attack, former president Donald Trump also spread false conspiracy theories about the attack, suggesting it could have been staged.”

  (Endnotes deleted.)

• Finally, also according to Wikipedia:

  • “On June 8, 2022, Nicholas Roske traveled to the home of Brett Kavanaugh, an associate justice of the United States Supreme Court, with plans to break in Kavanaugh's home, kill him, and then commit suicide.”

  • “Upon Roske's arrival, two deputy U.S. Marshals stationed outside Kavanaugh's home saw him step out of the cab.”

  • “After arriving and seeing the deputy U.S. Marshals, Roske started walking down the street. He then texted his sister and told her his intentions; she convinced him to call 9-1-1.”

  • “After his arrest, Roske told police he was upset about the leaked draft of Dobbs v. Jackson Women's Health Organization, which signaled the Court was positioned to overrule Roe v. Wade, the 1973 decision that declared abortion a constitutional right. He also cited a recent school shooting in Texas and his belief that Kavanaugh would loosen gun restrictions. . . . It was later revealed that Roske spoke of killing two other conservative Supreme Court justices.”

  (Endnotes deleted.)

Tenth, polling performed in 2017 revealed that among Republicans, 41 percent owned a gun, and another 15 percent did not but lived in a household where there was a gun. This contrasted with 16 percent and 9 percent, respectively, of Democrats. Polling performed in 2022 showed those numbers to be 48 and 18, respectively, for Republicans, and 20 and 11 for Democrats. So, according to the 2022 polling, 66 percent of Republicans lived in a household where there was at least one gun.

Eleventh, Trump is hardly the only high-level current or former Republican politician who publicly celebrates political violence–especially gun violence. (See this.)

Twelfth, in January, Trump’s attorney argued to a federal circuit court that if Trump, while president, ordered the military to murder any (and all) of his political enemies, that he could not be prosecuted in any court for ordering any such murder.

Thirteenth, if the Supreme Court had knocked Trump off the ballot in every state, then effectively he would no longer have any legal way--other than pleading guilty, being committed to a mental institution, or dying--from preventing any of the four indictments against him from proceeding to a trial and a verdict, and, if appropriate, a serious prison sentence. So presumably the Supreme Court justices who voted to knock him off would be at the top of his enemies list, although he would have to use means outside the halls of power to exact revenge.

Fourteenth, in their joint opinion in the disqualification case, the three liberal justices clearly demonstrated that the prospect of Trump’s using federal prosecutors to take revenge against anyone whom he considered to be an enemy (see the “Sixth” item under this Heading V above) was both quite real and very much on their minds.

Fifteenth, and last, in January the Washington Post published this astonishingly frank article entitled “Violent political threats surge as 2024 begins, haunting American democracy--‘I believe people when they say that they want to hurt us or kill us. I don’t think they’re idle threats,’ a Wisconsin Supreme Court justice said.” Here, at length, are excerpts:

Rusty Bowers, a former speaker of the Arizona House of Representatives who played a pivotal role in resisting efforts to overturn the 2020 presidential election, drove into his neighborhood east of Phoenix the day after Christmas to a spine-chilling scene.

His home, nestled off a dirt road in an unincorporated slice of the desert, was surrounded by sheriff’s deputies. An unknown caller had reported that there was a pipe bomb inside and that a woman had been murdered.

After searching the house and questioning Bowers’s wife and grandson, according to Bowers and authorities, sheriff’s deputies determined that neither claim was true.

The incident of swatting, a prank call to emergency services designed to draw a law enforcement response, wasn’t just a terrifying moment for Bowers and his family. It was one of many violent threats and acts of intimidation that have defined the lives of various government officials since the 2020 election. And now they are casting a shadow over the 2024 campaign as Americans prepare to vote in a primary season that kicks off this month.

Those on the receiving end span the range of America’s democratic system, including members of Congress, state officials, local leaders and judges. While some are prominent, others have relatively low-profile roles. The intensity has accelerated in recent weeks.

Bomb threats last week caused evacuations at state capitol buildings across the country. Federal authorities arrested and charged a man with threatening to kill a congressman and his children, while other members of Congress dealt with swatting incidents. . . .

Police responded to an alleged swatting attempt Sunday night at the home of Tanya S. Chutkan, the federal judge overseeing Trump’s election subversion case in D.C. . . .

Attorney General Merrick Garland on Friday called the wave of threats against government workers and public servants a “deeply disturbing spike.”

While some on the right have been affected, many targets share a common attribute: They have done or said something that has earned Trump’s ire.

Experts say that acts of physical violence toward officials and politicians since the attack on the U.S. Capitol by a pro-Trump mob on Jan. 6, 2021, remain relatively rare. But they caution that the possibility of harm being inflicted on public servants is already undermining the health of U.S. democracy because the intimidation risks influencing their decision-making.

Officials who have been targeted say they fear that threats could, at any time, tip over into physical violence.

“I am really worried that there is going to be a tragedy,” Wisconsin Supreme Court Justice Jill Karofsky said in an interview. “I believe people when they say that they want to hurt us or kill us. I don’t think they’re idle threats.”

Members of the Wisconsin Supreme Court were hit with a wave of threats — many of them misogynistic and antisemitic — after they ruled 4-3 in December 2020 to uphold Joe Biden’s victory over Trump.

The court has continued to receive threats in the years since, including one on Thursday that came into the court clerk’s office. The court had been dominated for years by conservatives, but following an election last year, it has a liberal majority that has begun to rule on key political questions, including state legislative redistricting.

Karofsky, who is part of that narrow majority, said she views the threats as an attempt to intimidate judges into changing their rulings.

“I think mostly radical people on the right . . . are trying to exert influence on the judiciary in an anti-democratic fashion,” she said. “It is through intimidation. It is through threats. It is through violence.”

On Wednesday, bomb threats forced evacuations, closures or stepped-up security measures at more than a dozen state capitols, in Connecticut, Georgia, Kentucky, Michigan, Minnesota, Mississippi, Montana, Wisconsin, Hawaii, Maine, Oklahoma, Illinois, Idaho, South Dakota, Alabama, Alaska, Maryland and Arizona. The FBI said it had no information to indicate that the threats were credible.

Additional security threats were reported Thursday in Arkansas, Florida, Maine, Mississippi and Wisconsin, according to officials and local news outlets.

The day before sheriff’s deputies surrounded Bowers’s home — an incident that has not been previously reported — Rep. Marjorie Taylor Greene, a Republican from Georgia, was the target of a swatting attempt on Christmas Day. So was Rep. Brandon Williams, a Republican from New York, according to social media messages from both politicians and local news outlets. Federal authorities arrested a Florida man on Wednesday and charged him with threatening to kill Rep. Eric Swalwell (D-Calif.) and his children.

“This is just a small snapshot of a larger trend that has included threats of violence against those who administer elections, ensure our safe travel, teach our children, report the news, represent their constituents and keep our communities safe,” Garland told reporters on Friday. “These threats of violence are unacceptable. They threaten our fabric of democracy.”

. . .

He said Justice Department officials had been working to combat such threats for years and were meeting Friday “to determine how we can double down on those efforts in the new year.”

Steven Levitsky, a professor of government at Harvard University who studies democracies around the world, said politicians and election workers who are threatened have their lives affected, often needing to adopt new security measures or other safeguards.

There is also an impact on decision-making as officials attempt to safely carry out their jobs. Violent threats “make us a less democratic political system” because of how they change political incentives, Levitsky said. Politicians have, for instance, acknowledged that they have changed their votes out of fear for their families’ safety.

Levitsky noted that while violent threats span the political spectrum, the “vast majority” come from activists and others on the far right. Crucially, those threats are often not discouraged by their representatives in government, he said. Rather, Trump and others have appeared at times to encourage and condone the behavior.

For instance, Rep. Elise Stefanik (R-N.Y.) said on NBC’s “Meet the Press” over the weekend that she condemned violence, but she also echoed Trump’s characterization of those incarcerated for their role in the violent Jan. 6 insurrection as “hostages.”

The lack of widespread political violence since the Jan. 6 insurrection doesn’t make people feel safer, Levitsky added, because so much “fantasy violence” is playing out on social media.

Such threats have “an acute effect of stopping people from doing their jobs,” said Lilliana Mason, associate professor of political science at Johns Hopkins University. Longer term, people can be discouraged from running for office or engaging in election work, added Mason, who is the co-author of the book “Radical American Partisanship.”

“So it not only intimidates people who are in office, but it changes the makeup in the future of people who will be in office,” Mason said.

. . .

On Wednesday, Gabriel Sterling, chief operation and financial officer for the Georgia secretary of state’s office, received a call from the police chief in his hometown of Sandy Springs in suburban Atlanta, asking whether he was okay. The police chief had received a call about an active threat at Sterling’s home.

Sterling arrived home to 14 police cars outside his house.

. . .

Sterling was a key election official in Georgia during the 2020 presidential election. He spoke out forcefully against Trump’s attempts to cast doubt on the election results and the threats to election workers that followed the vote.

“Someone’s going to get hurt,” Sterling said at the time. “Someone’s going to get shot. Someone’s going to get killed.”

. . .

Like Sterling, Bowers has been repeatedly threatened and harassed since the 2020 election. . . .

. . .

Karofsky, the Wisconsin Supreme Court justice, said she thought it was important to let the public know what officials are dealing with.

“We are at a moment of time where our democracy literally is on the line, and we have to figure out if we are just going to turn it over to a bunch of insurrectionists who think it is perfectly okay to use violence and intimidation to get the rulings that they want in a courtroom,” Karofsky said. “Or are we going to have a democracy where people follow the rule of law? And if I don’t stand up and if other people don’t stand up, and we don’t talk about this, we’re going to lose this battle.”

No doubt all nine justices of the Supreme Court are familiar with that Washington Post article, and with the matters covered in many of the other fourteen items discussed above.

VI. How the Portions of the Disqualification Decision Which Only Five Justices Agreed Upon Are Improper, But Nevertheless Are Consistent With My Views, As Discussed Under Headings III Through V Above and in the Inaugural Edition of My CCC Newsletter, Concerning the Correct Way to Understand How Supreme Court Justices Think and Act

A. What the Five Justices Did in Their “Per Curiam” Opinion in the Disqualification Case Which the Other Four Justices Disagreed With

The characterization of the dispute which the Supreme Court must resolve in any case is contained in the “Questions Presented” which appear on the very first page after the cover page in a “petition for certiorari”--a petition for Supreme Court review, usually referred to as a “cert. petition”--or in any other formulation set out by the Court upon “granting cert.” (granting review) to a party. In the disqualification case, Trump's cert. petition listed only one Question Presented: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”

In granting cert. to Trump on January 5, the Court merely wrote, “Petition GRANTED.” That meant that the only issue before the Court in the case was the one which Trump identified as his “Question Presented.”

American courts–not just the Supreme Court–are only supposed to rule on issues that are necessary to resolve the disputes before them. This is primarily because judges are not legislators, whose main job it is to promulgate laws that act prospectively to govern the conduct of other parts of the government and of the citizens. Rather, courts are meant simply to do what is necessary to resolve “cases or controversies.”⁸

Indeed, when it comes to construing the Constitution, the Supreme Court is supposed to take pains to avoid reaching questions which it need not reach in order to resolve the dispute between the parties. Moreover, the strong desire for unanimity among the justices in the Trump cases (see Heading IV above)–which the justices have achieved thus far in all their other decisions regarding the current Trump criminal and civil cases--in theory should have applied, not just to the result in each case, but to the reasoning supporting that result, especially if the fallout from that reasoning would have far-reaching political consequences.

In the disqualification case, not only did the five justices identify a justification that resolved the Question Presented, but they identified one which all four of the other justices agreed with as well. (See Heading II.A above.) Nevertheless, the five justices went much further.

On pages 4 through 5 of their "per curiam" slip opinion, the five wrote–at times explicitly, and at other times implicitly--that, not only are states without power to decide whether a person seeking to be president of the country could be removed from the ballet on the ground that the person had engaged in an insurrection; but that no one –not even the federal courts, and not even the Supreme Court–can make a decision of any kind that a person seeking any federal office was disqualified on the basis of having engaged in an insurrection unless and until Congress enacts laws which identifies who may make such decisions and how those decisions are to be made.

That action of the five justices provoked strong objections from the other four justices. In particular, the joint opinion of the three liberal justices:

• in its very first sentence, threw in Chief Justice Roberts’s face the fact that in the notorious 6-to-3 decision two years ago that overruled Roe v. Wade, Roberts had written in an opinion concurring in the judgment, “‘If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more’” (emphasis by Roberts);

• persuasively demonstrated how, aside from being unnecessary, the arguments made by the five justices do not hold water; and

• wrote on page 3 of their slip opinion that the majority opinion “forecloses judicial enforcement of that [Constitutional disqualification] provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.”

In addition, Court observers have suggested additional such scenarios, such as, “Could an executive order by an insurrectionist president — call him Donald Trump — be challenged on the grounds that he is not entitled to hold office?”

Moreover, the position of the five justices would seem to have foreclosed future judicial consideration of one relatively live, very political issue, and another such issue that is not live yet.

The relatively live one concerns the House members whom the Introductory Material (at pages 87-90) of the Final Report of the House Select Committee to Investigate the January 6th Attack on the United States Capitol identified as having been involved in the attempted coup, including what occurred on, and shortly after, January 6: Jim Jordan, Scott Perry, and Andy Biggs, all of whom are still House members.

In fact, in 2022, qualified voters in the Congressional districts of Biggs and another current House member, Paul Gosar, sued those Representatives in an Arizona court, claiming that they could not be on the ballot for their House seats in November of that year because of their participation in an insurrection. But the Arizona Supreme Court ruled that only Congress has the power to disqualify people from holding office for taking part in an insurrection.⁹

The potential, highly-political issue that may arise would involve persons who participated in the Capitol attack who arguably engaged in an insurrection and who at some point (1) seek to run for Congress, or (2) whom Trump–who has deemed the convicted Capitol attackers among them to be “political prisoners” or “hostages” (see the “Sixth” item under Heading V above)--or some other Republican president attempts to appoint as an officer of the United States.

Finally, as discussed under Heading VII.B below, it is far from certain that the federal courts, in the absence of an act of Congress, will never have jurisdiction to determine in the types of situations enumerated above under this Heading VI.B, or in other types of cases, whether a particular person is barred from holding federal office because of the person’s having taken part in an insurrection.

It should also be noted that legal scholars have opined that it remains unclear whether, if Trump were to prevail in the Electoral College with respect to the November 2024 election, Congress could deny certification of Trump’s victory on the ground that he is disqualified because he engaged in an insurrection. Thus, for those citizens who believe that Trump engaged in an insurrection and thus is disqualified, not only should they do everything they can to defeat Trump at the ballot box, but they may also want to do everything they can to defeat Republican candidates for the House and Senate in November so that, if the Democrats control both Congressional chambers after the election, they may be able to disqualify Trump from retaking office later that year.

B. The Search for Answers to The $64,000 Question of Why the Five Justices Wrote the Excess Language

I have seen some observers attempt to provide answers to the question, “Why did the five justices decide to write their excess language, which is so wrong both substantively and procedurally?”

None of the answers provided by those observers seem convincing to me. For example, it has been suggested that the five did so in order to help Trump. But how is what they did helping Trump? The result in the case agreed upon by all nine justices has already ensured his place on the ballot throughout the country.

Moreover, the person who made that suggestion did not explain why five of the justices–especially Chief Justice Roberts–would want to help Trump. As indicated under Heading IV above, the inaugural edition of my CCC newsletter enumerated a host of reasons why the justices–including the conservative ones–would not want to see Trump reelected.

Additionally, why would the five justices take such an unnecessary, unsupportable step when it may not even have become necessary for them to address the sorts of disputes that the three liberal justices and some observers have posited (see Heading VI.A above), and where, at the very least, the five could simply rule in Trump’s favor if and when such disputes arose?

C. Reasonable Answers May Be Found in the Inaugural Edition of My CCC Newsletter

The answer may well be precisely what I wrote under Heading C in the inaugural edition of my CCC newsletter (posted January 8): that even the Court’s conservative justices would want to avoid (1) having to rule on the legality of the sorts of activity in which Trump (and his supporters) is likely to engage if reelected, and (2) being faced with the dilemma of having to decide weighty issues in a manner which either: would please the reelected President Trump but would be repugnant to them, or would displease the dictator and thus invite retaliation against them.

Indeed, the concurring opinion jointly written by the Court’s three liberal justices in the disqualification case stated that the majority’s opinion “forecloses judicial enforcement of that [Constitutional disqualification] provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.” (See Heading VI.A above.) That would certainly be a distasteful situation for all the justices: having to rule on the legality of Trump’s retaliatory actions–which might even involve incarcerating or even executing¹⁰ those being retaliated against–while knowing that ruling against Trump could provoke retaliatory action against the justices, their families, or their staffs, whether by Trump, his supporters, or both.

But that leaves one final question to answer: Why did Roberts join as one ofthe five, while Barrett refused to? After all, Roberts is considered the least conservative of the Court’s six conservative justices, and he was the only one of the six not to join the 2022 opinion overruling Roe v. Wade.

As to why Roberts joined as one of the five, the correct answer may well be one which I implicitly adverted to under Headings II (& Endnote 8) and V in my second CCC newsletter edition (posted January 16) when discussing former Chief Justice Rehnquist: The chief justice has a particular interest in creating or maintaining the impression that the Court is above politics. Roberts, for instance, throughout his almost-20-year tenure as chief justice, has on a number of occasions publicly defended his Court against charges of political bias. So a primary concern of Roberts presumably would be steering the Court as clear as possible from having to decide whether a presidential candidate–especially a former president who is the odds-on favorite to be his party’s nominee–is eligible to be on the ballot.

As to Barrett, two possibilities immediately come to mind. The first is that she honestly disagreed with the unnecessary action that the five others took in the disqualification case. As I explained in Item B.1.a in the inaugural edition of my CCC newsletter, Barrett, as well as the two other justices appointed by Trump, do not always march in lock-step with each other, and much less do they march in lock-step with Thomas and Alito.

The second possibility is that it was decided among the five justices and Barrett that it would look better if at least one of the conservative justices joined the three liberal justices in refusing to join the position taken by the five. Indeed, it would look even better if a justice appointed by Trump joined the three liberals.

So once Roberts–the Chief Justice–indicated that he wanted to be part of the five, Barrett, a Trump appointee who is also the most junior justice on the Court, would have been the likely choice to play the odd justice out. Thus, in his late December piece in the New York Times (see Heading II.A above), Adam Liptak wrote, “Chief Justice John G. Roberts Jr. will doubtless seek consensus or, at least, try to avoid a partisan split of the six Republican appointees against the three Democratic ones.”

VII. How Portions of the Disqualification Decision Which Only Five Justices Agreed Upon May Not Constitute, or May Not Always Constitute, the Law of the Land

A. Distinguishing ‘Holdings’ From ‘Dicta’

When an appellate court issues a written opinion providing reasons designed to justify the result the court has reached in a case, the question arises in the future as to what aspect or aspects of that reasoning constitute “the holding,” or “the holdings”—sometimes referred to as the “ratio decidendi”—in that case. For it is “the holding” that binds that court, and the lower courts the appeals from which the appellate court hears, in future cases. In other words, a “holding” constitutes “binding precedent” or “binding authority” on those courts.

On the other hand, when an appellate court makes statements in a written opinion which are not necessary to justify the result the court reached in a case, those statements are considered to be “dicta”—sometimes referred to as “obiter dicta.” While a “dictum” may constitute “persuasive precedent” or “persuasive authority” over that court and the lower courts the appeals from which the appellate court hears, it is not “binding” on any of those courts.

So how can one discern which statements and reasoning in an appellate opinion constitute “holdings,” and which constitute “dicta”? There are sometimes differing views on this matter, and, in any event, there are often disagreements as to what constitutes “the holdings” and what constitutes “the dicta” in a particular appellate opinion. Generally speaking, though, the basic formulation used to separate “holdings” from “dicta” are that “holdings” are statements in an opinion that were necessary for the appellate court to reach the result it reached in the case, whereas any other statements in the opinion are merely “dicta.” See generally this.

So who gets to decide which statements in an appellate opinion are holdings and which are dicta, and when do they get to decide this? Ultimately, the appellate court that issued the decision gets the final say in later opinions of that court as to what portions of that decision constitute holdings and what portions constitute dicta.¹¹

But before the appellate court that issued the opinion in question clarifies which parts of that opinion are holdings and which are dicta, it is up to the individual courts below the appellate court to which appeals from decisions of those lower courts go, to decide what in the opinion constitutes holdings and what constitutes dicta.

One final thing needs to be said before I indicate why this discussion of holdings and dicta is relevant to the “per curiam” opinion in the disqualification case. It is not uncommon for appellate courts to ‘announce’ the holding of an opinion in the opinion itself, by using phrases such as “we hold that.”

However, that the court does so does not automatically mean that what the court says is the holding actually is a holding. As stated in 1979 by the enormously-celebrated Judge Henry Friendly, who served on the United States Court of Appeals for the Second Circuit for more than a quarter of a century:

A judge's power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word "hold". There should hardly be need to recall the long established Supreme Court jurisprudence that, as said in Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 399-400, 5 L.Ed. 257 (1821):

“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

Normally, both the appellate court which uses such a phrase in a particular opinion, and the courts below that court whose decisions are appealed to that appellate court, will accept such a phrase at face value. But they are not “bound” to.

Also, sometimes, in a concurring or dissenting opinion in an appellate decision, one or more judges may express their disagreement with the use of such a phrase in the majority opinion; or, in the absence of such a phrase, may point out that certain portions of the majority opinion merely constitute dicta, not holdings.

B. What Portions of the Per Curiam Opinion in the Disqualification Case Constitute ‘Holdings,’ and What Portions Constitute ‘Dicta’?

As discussed under Heading VI.A above, the five justices responsible for the “per curiam” opinion in the disqualification case went far beyond what was necessary for them to answer the Question Presented in the case. Indeed, that opinion does not use the term “we hold that,” or any similar term, to imply that anything it wrote beyond that with which the other four justices agreed constitutes a holding.

Rather, that per curiam opinion (which is followed by two orders) ends this way:

[I]t is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.

Note that the opinion says that all of the reasons “resolve[ ]” the case, not that they are all “necessary” to resolve the dispute between the parties or the Question Presented. Similarly, the opinion says that “each of these reasons is necessary to provide a complete explanation” for the result the Court reached, not that each of the reasons is “necessary” to resolve the dispute between the parties or the Question Presented.

In fact, after quoting the narrow Question Presented (see Heading VI.A above) on page 3 of its “per curiam” slip opinion, and after engaging in its unnecessary discussion on pages 4 and 5, the majority on page 6 begins its analysis of the answer to the Question Presented by writing, “This case raises the question whether the States, in addition to Congress, may also enforce Section 3.” But nowhere in the Question Presented or anywhere in the majority opinion is there any contention that the case “raises the question whether the federal courts, in addition to Congress, may also enforce Section 3.”

Justice Barrett’s solo concurring opinion implies that the “per curiam” opinion’s excess language constitutes dictum, and gives no indication that it contains any holdings:

I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.

(Emphases added.)

The joint opinion of the three liberal justices, while not explicitly stating that the portions of the “per curiam” opinion which only garnered the support of five justices constituted “dictum,” certainly implied that this is so when the three justices characterized those portions as “musings [that] are as inadequately supported as they are gratuitous,” and when they wrote, “Today, the majority goes beyond the necessities of this case . . . .”

Surprisingly, that joint opinion also stated that “the majority . . . holds” certain things in some of those excess portions. What the three justices should have written was “the majority contends” or “the majority purportedly holds.” No doubt that language those three justices chose to use will be cited by justices, judges, and observers in the future in support of the position that the excess language constituted holdings, not dicta.

In light of everything written above under Heading VII.A and this Heading VII.B, it is reasonably likely that at some point in the future, some number of Supreme Court justices, federal circuit judges, and/or federal district judges will not feel “bound” to follow one or more particular portions of the “per curiam” opinion unless and until a majority of the justices:

• in a later case which squarely presents the issue addressed by a portion of that “per curiam” opinion, renders a decision which explicitly or implicitly embraces that portion, or

• perhaps, in a later case which does not squarely present that issue, clearly states that the portion in question constitutes a holding.

Of course, even Supreme Court justices who at any point, for whatever reason, believe that a portion of a prior majority decision constitutes a holding and thus constitutes “binding” precedent or authority, always have the option of voting to overrule that precedent, although that option is supposed to be used rarely.

Now you may ask, “What difference does it make what, in the future, some number of Supreme Court justices (in concurring or dissenting opinions), federal circuit judges, federal district judges, law professors, other experts, or the media, write about whether the excess language in the “per curiam” opinion contains holdings or dicta, inasmuch as the five justices who authored the “per curiam” opinion are not going to change their minds, and thus, as David French wrote (see Heading II.B above), and as other have also claimed, those justices have “erased” Section 3 of the Fourteenth Amendment insofar as federal officers are concerned?

There are potent answers to that question.

To begin with, it cannot confidently be claimed that none of the five justices will ever change his or her mind as to any aspect of the excess language. As Justice Barrett’s concurrence indicates, the “per curiam” opinion was written “in the volatile season of a Presidential election.”

At some later time and in a different environment and under different circumstances, at least one of those five may see things differently when, for example, a particular issue arises in a case such as the issues suggested under Heading VI.A above, especially because:

• that justice might feel very uncomfortable applying the excess language to that particular issue and case, such as the one posited by the three liberal justices in the disqualification case, where “a party is prosecuted by an insurrectionist and raises a defense on that score” (see Heading VI.A above)--especially if that party were one of the justice’s colleagues (see Heading V above);

• that justice, the parties, the legal experts, and others whose input would be available to the justice, would have the opportunity to give much greater attention to that particular issue, in contrast with happened in the Colorado case, where the parties and the lower courts raised a plethora of issues (see Judge Friendly quote under Heading VII.A above);

• as discussed above under Heading VI.A and earlier under this Heading VII.B, the excess language is objectively on very shaky ground, both in terms of its containing apparent dicta and of the weakness of the arguments advanced to support those dicta; and

• the concerns that apparently led the five justices to write the excess language (see Heading VI.C above) would not exist--or would have greatly less significance–-as to issues not directly concerning Trump, and especially if Trump loses the 2024 election, becomes mentally or physically incapacitated, or dies.

Moreover, if any of the five justices were to resign, become incapacitated, or die (one of those three things eventually happens to every Supreme Court justice), then the replacement justice might well be in the position to join at least four other justices to make clear that at least some of the excess language was really excess baggage that needs to be jettisoned, whether because it contains dicta or because it should be overruled. In fact, even before a replacement justice is confirmed, if the Court were to split four to four on the question whether a federal circuit court properly affirmed the decision of a federal district court that found a person–perhaps a member of Congress running for reelection, or a former president or his child or the spouse of his child, who is running for president in 2028--disqualified from holding federal office on the basis of the person’s having taken part in an insurrection, then that person would be officially disqualified because a tie vote in the Supreme Court normally is treated as an affirmance of the decision of the court whose decision the Supreme Court is reviewing.

Additionally, and most unfortunately, if, for example, Trump were to be reelected and promiscuously dished out retrospective and prospective pardons and ordered that all pending federal criminal prosecutions against him himself and his supporters must be abated, then that would only serve to encourage Trump, his supporters, and others to engage in insurrection and other crimes in the future. So there may at some point be an entirely new crop of insurrectionists who need to be disqualified from holding federal office and criminally prosecuted.

VIII. Photographs

Under Heading III in my fourth CCC newsletter edition (posted on February 28), I included a photograph. I noted that the taller of the two buildings in that photo which were framed within the sculpture on the World Trade Center plaza had once been the tallest building in the world. I asked if you could identify that building. The correct answer is that it was the Woolworth Building.

And now, here’s this edition’s photograph:

I took that photograph on the same autumn trip to the White Mountains of Vermont in October of 2018 during which I took the photograph included in the inaugural edition of my CCC newsletter, which was posted on January 8.

This new picture was taken at Jackson Falls in Jackson, New Hampshire. Jackson is an adorable little town with a population of about 1,000 people. The falls are pretty much in the center of town.

When I arrived in town that day for the first and only time in my life, I asked a passerby for directions. She said that she was on her daily walk around town, and she enthusiastically told me all the great things about the town while I walked with her for a while. Maybe I’ll move there someday.

According to Wikipedia, the town was incorporated in 1829–the same year that Andrew Jackson was inaugurated as president–and thus that year the town was named after him. However, in 2021, the town kept its name, but rededicated itself to honor a 19th Century geologist named Jackson instead of the president of almost two centuries earlier.

Also according to Wikipedia, in the year of his inauguration, Andrew Jackson

signed the Indian Removal Act. This act, which has been described as ethnic cleansing, displaced tens of thousands of Native Americans from their ancestral homelands east of the Mississippi and resulted in thousands of deaths. . . .

. . .

During his administration, he [Jackson] made about 70 treaties with American Indian tribes. He had removed almost all the Native Americans east of the Mississippi and south of Lake Michigan, about 70,000 people, from the United States; though it was done at the cost of thousands of Native American lives lost because of the unsanitary conditions and epidemics arising from their dislocation, as well as their resistance to expulsion. . . .

. . .

In a C-SPAN poll of historians, Jackson was ranked the 13th [highest-rated president] in 2009, 18th in 2017, and 22nd in 2021.

(Endnotes omitted.)

Neither of those Wikipedia pages explains why the town of Jackson decided in 2021 to rededicate the town’s name to someone other than Andrew Jackson, nor why Jackson’s ranking among American presidents was five places lower in 2017 than it was in 2009, and then four more places lower in 2021. Could it have anything to do with the facts that upon entering the White House in 2017, Trump hung a portrait of Jackson in the Oval Office and called Jackson “‘an amazing figure in American history — very unique so many ways’”; and that in January of 2021, Trump engaged in conduct which will forever live in infamy?

The next time I go on a personal photo tour of the White Mountains, I’ll be sure to revisit Jackson, not only to try to find out the answers to those questions and to take more pix of the Falls, but perhaps also to scope out the real-estate market.

Speaking of the Falls, did you notice that essentially everything in the photo I included above is in perfect focus except the water, and that the mini-falls–especially those in the foreground--look ghostly? Do you know how I managed to obtain those effects?

Be sure to tune in to the next, sixth edition of my CCC Substack newsletter to find out.

Be seeing you,

Brian

1. Section 2383 is a perfect example of legislation enacted by Congress which effectuated the disqualification provision in Section 3 of the Fourteenth Amendment. (See Heading VI.A herein.) In making it a federal crime to incite, assist, or give of aid and comfort to an insurrection, as a matter of law Congress implicitly specified that the federal courts would decide, as it would with any crime, whether the crime was committed and, if so, what sentence would be imposed, and would do so pursuant to the laws that govern how federal crimes are processed in federal courts, which process includes the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

2. Trump v. Anderson, 602 U.S. __, __-__ (2024) (per curiam), No. 23-719, slip op. at 11-13; id. (Barrett, J., concurring in part and concurring in the judgment, slip op. at 1); id. (Sotomayor, Kagan, and Jackson, JJ., concurring in the judgment, slip op. at 1-3).

3. The fear of retaliatory wrongful criminal prosecution and, especially retaliatory wrongful incarceration (or execution), could affect the decision-making of Supreme Court justices in a number of ways. For example, in the context of the Colorado disqualification case, a justice could have feared such retaliation if (a) s/he and at least four other justices had voted in that case simply to bar Trump from being on the Colorado ballot (and perhaps the ballots in some other states), but Trump nevertheless won the 2024 presidential election; (b) s/he and at least four other justices voted in that case to bar Trump from being on the ballot in every state, but then a Trumpist–especially a relative of Trump’s–won the 2024 presidential election; or (c) s/he and fewer than four other justices voted to keep Trump off the ballot in every state, but then Trump went on to win the 2024 presidential election.

While such fears, as well as the fear of threats of violence, would be present whenever a justice voted against Trump in one of the recent cases in which he is a party, the fear of threats of violence would seem to be most justified in the context of the disqualification question. For in that context, Trump supporters would be directly affected by the Court’s decision by having their ability to vote for the candidate of their choice taken from them, and Trump supporters, rather than Trump himself, would be the ones likely to be making (and to be attempting to follow through on) the threats of violence.

4. See, e.g., this, that, the other, and yet another in the New York State criminal case.

See this and that in the D.C. federal criminal case.

See, e.g., this in the Georgia state criminal case.

5. See this and that in the New York State criminal case.

See this and that in the federal D.C. criminal case.

See this in the Georgia state criminal case.

See this in the New York State civil case.

6. See this and that in the New York State civil case.

7. See this in the New York State civil case.

8. See, e.g., Article III, Section 2, Clause 1 of the United States Constitution.

Of course, where there is no clear precedent to guide a court as to how to rule in a case, the court–especially an appellate court--in a sense ‘makes law’ when it declares its ruling and when it provides the reasoning in support of its ruling. But ‘making law’ in that sense is necessary, both to ensure that equal cases are treated equally, and so that citizens and government officials can plan their lives and actions in a reasonable and reliable manner. Yet, to avoid acting like a legislature, a court ordinarily should only go so far as is necessary to decide the dispute between the parties when ‘making law.’

9. Also in 2022, Georgia Secretary of State Brad Raffensperger rejected a somewhat similar challenge brought by registered voters in the Congressional district that U.S. Representative Marjorie Taylor-Greene represents.

10. Since leaving office, Trump has stated that General Mark Milley, NBC News, and MSNBC should be charged with treason, adding that the death penalty for at least Milley might be in order. A person convicted of treason must be sentenced to death or to a term of imprisonment of at least five years (and also “shall be incapable of holding any office under the United States”). Trump has also suggested that if reelected, he would have Biden prosecuted.

11. Of course, it is possible that what the appellate court says in later opinions about the opinion in question is itself “dicta,” in that the court did not have to reach that inquiry in the later opinions in order to justify the result it was reaching in those later opinions.