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Will the media accept the Supreme Court’s Trump ruling?

MSNBC's Rachel Maddow shows her appreciation for Trump. Credit: MSNBC

March 4, 2024 - 9:45pm

On Monday, even the US Supreme Court’s staunch liberal minority agreed that the 14th Amendment does not allow Colorado to bar Donald Trump from the presidential ballot on the grounds he engaged in or aided an “insurrection”. The decision was unanimous. 

If you placed bets based on media coverage of the case, though, you likely lost good money. The New York Times’s token conservative legal columnist David French called the argument against Trump “strong” in a January column which carried on as though only partisan hacks would think otherwise.

“Seems pretty clear to me,” Rachel Maddow laughed on MSNBC, similarly suggesting to viewers it would take a feat of legal gymnastics for MAGA judges to side with the former president. (One popular X account collected a list of the poorly-aged commentary from pundits on the Left and Right.)

Media favourites Laurence Tribe and J. Michael Luttig, who co-bylined an Atlantic essay in favour of barring Trump last year, projected their confidence all over the media after Colorado’s court ruled in December. Luttig, once appointed to the Fourth Circuit by President George H. W. Bush, said of the decision: “It was brilliant, and it is an unassailable interpretation of the 14th Amendment.” USA Today reported on Luttig’s assessment, issued on “Morning Joe”, with the headline “Masterful: Former conservative judge applauds decision to remove Donald Trump from Colorado ballot.” The article included no counterarguments. 

Tribe, for his part, echoed Luttig in an interview with the Harvard Gazette, heralding the decision as “unassailable” and categorising the dissents as “extremely weak, surprisingly weak”.

Contrast the much-amplified opinions of Tribe, Luttig, French, and others with what Justices Kagan, Sotomayor, and Jackson wrote in their concurring opinion. Colorado’s move, they decided, would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles”. 

While they criticised the majority’s full opinion as too sweeping, they pulled no punches against Colorado, writing: “It would defy logic for Section 3 to give States new powers to determine who may hold the Presidency”. “To allow Colorado to take a presidential candidate off the ballot under Section 3,” said the minority, citing a 1994 decision on term limits, “would imperil the Framers’ vision of a Federal Government directly responsible to the people”. 

This stark contrast echoes the infamous disconnect between nearly unanimous media predictions of an easy victory for Hillary Clinton in 2016 and the results of the election itself. What’s worse is that since being caught off guard by Trump’s win, the media broadly doubled down on excluding voices of dissent. This exposed an industry characterised by two qualities journalists traditionally found shameful: bias and inaccuracy. 

Ideally, today’s media would have assured its readers and viewers that Colorado’s case involved a novel legal theory that would likely run into trouble, even with liberal justices. 

Instead, Colorado’s Supreme Court and its Secretary of State were treated like paragons of legal genius by journalists and their anti-Trump sources. Revisiting the coverage reveals a clear and resounding press consensus on the case.

When 9-0 decisions come from a deeply-divided SCOTUS, flying in the face of expectations set by the media’s chorus of experts, we’ll at least know not to blame MAGA-addled simpletons breathlessly bending the Constitution to serve their glorious leader.


Emily Jashinsky is UnHerd‘s Washington D.C. Correspondent.

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Jimmy Snooks
Jimmy Snooks
4 months ago

The look on Rachel Maddow’s face says it all. Can’t see it, won’t see it, not having it (even if true).

Peter F. Lee
Peter F. Lee
4 months ago
Reply to  Jimmy Snooks

Does Rachel Maddow and her cohorts in the MSM know that they are mostly parroting the DNC line and knowingly misleading their audience…. I always wonder how do they sleep at night.

Hans Daoghn
Hans Daoghn
4 months ago
Reply to  Peter F. Lee

That was a rhetorical question, right? 🙂

John Moss
John Moss
4 months ago

Amazing to see these so called originalist judges changing the constitution by fiat. The idea that this amendment can only be enforced by Congress and not the courts in absolute nonsense. There is a check on judicial overreach in that the amendment would allow Congress to put Trump back on the ballot. If they intended that ONLY Congress could enforce the clause it would be ridiculous and pointless to include a clause allowing them to make exceptions for those banned by the courts.

T Bone
T Bone
4 months ago
Reply to  John Moss

I think part of the problem is that the Constitution wasn’t written to deal with Marxist subversion tactics. There’s really nothing in the “Originalist” playbook to combat Anti-Democratic forces operating under the guise of “Protecting Democracy” by switching the meaning of words to mystify people…as you have just done with the concept of “judicial fiat.”

Lisa Letendre
Lisa Letendre
4 months ago
Reply to  T Bone

Let’s have a look at Marxist subversion tactics, shall we? What if it had been a Democrat who would not stand down and pass on power peacefully after a defeat? A Democrat who was seen by the whole world, what a bad loser he is. So bad he called on and then stood by while his supporters crawled all over Capitol Hill like termites, brandishing weapons; that caused elected members to flee for their safety and ended with people losing their lives. If that had been a Democrat, you would be wanting the same justice that is being demanded now. But it wasn’t, it was a Republican who did this, and there is no other way you can dress this up.

Peter F. Lee
Peter F. Lee
4 months ago
Reply to  Lisa Letendre

Not sure I know of a Republican that did not stand down and pass on power peacefully after a defeat. I think dear old Joe is currently president. There are several videos and tweets of Pres. Trump calling for a peaceful protest on Jan 6th.
The more important question is How does one handle election fraud if it is determined that it found to exist. It would seem that SCOTUS bowed to Antifa and BLM in their adjudication of the 2020 election for fear of riots etc.

T Bone
T Bone
4 months ago
Reply to  Lisa Letendre

I understand that you get your information from an alliance of press organizations that craft narratives in the interest of the Democratic Party. I understand that those organizations reject the concept of “Bothsideisms” where other political perspectives are presented. I also understand that you believe yourself to be on the “Right Side of History” and your “lived experience” of subjective reality confirms these narratives as true and unfalsifiable.

You can’t have a conversation with people that ignore their own bias. If you’d like to have a rational discussion where any preconceived bias is placed on the table, you let me know.

Julian Farrows
Julian Farrows
4 months ago
Reply to  Lisa Letendre

Too right! Democrats never riot, they protest!

El Uro
El Uro
4 months ago
Reply to  Julian Farrows

In relatively peaceful manner

Daniel P
Daniel P
4 months ago
Reply to  John Moss

Would that include the NOT originalist judges too?

It is REALLY simple, an amendment was passed that had a remedy but no process to get there with no named authority to take it there.

Was that bone headed? Yeah, probably.

And, you probably missed the bit in the decisions where they pointed out that nobody had been found guilty of insurrection. The DOJ has never charged ANYONE with insurrection, much less Trump and there is a federal statute for it.

Do you really think that if Jack Smith could have charged Trump with insurrection, if he though he could prove it in a court, that he would not have?

Too late to change the charges now.

And, what is worse for Smith? There is a very real chance that the court will overturn the use of the Sarbanes Oxley statute for the Jan 6th cases which, although brought by other defendants, would eliminate half his case against Trump right off the bat.

Jim Veenbaas
Jim Veenbaas
4 months ago
Reply to  John Moss

I’m not sure what you’re saying here. I haven’t read the ruling, but I assume the court argued that only Congress can take Trump off the ballot. State courts do not have that authority. What am I missing here?

Right-Wing Hippie
Right-Wing Hippie
4 months ago

Colorado’s move, they decided, would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles”
A “state-by-state patchwork” is federalism. Even I know that, and I’m an idiot.

Jim Veenbaas
Jim Veenbaas
4 months ago

This is true, but under a federalist system, political jurisdiction is divided up between federal and state govts. I assume – but I may be incorrect – that federal elections are under the sole purview of the federal govt. I also assume that over time it has granted states and counties etc… to carry out the functions of elections on its behalf.

Right-Wing Hippie
Right-Wing Hippie
4 months ago
Reply to  Jim Veenbaas

I’m not saying their decision was wrong, I’m saying they’ve expressed it idiotically.

Norman Powers
Norman Powers
4 months ago

It only seems idiotic if you strip it of context. Given the impossibility of having a state-by-state presidency in a federal system, there has to be a consistent method of choosing that president. That is entirely consistent with the principles of federalism.
Actually I’m not even sure federalism as a concept says where to draw the line between state and federal responsibilities. The Federal Republic of Germany has very strong federal government, the America of 1800s had much weaker federal government vs the states, and the America of 2020 has a relatively strong federal government. They are all federalist systems though.

Brian Villanueva
Brian Villanueva
4 months ago

I was actually pretty torn about that too. I’m a hard core federalist and I don’t see any problem with different states placing different standards on ballot access. Even for President. However, considering how far we are from that system designed in 1789, this decision makes sense. Federalism was, in most respects, destroyed by the Civil War and its aftermath.

Arkadian Arkadian
Arkadian Arkadian
4 months ago

I was puzzled by that too.

UnHerd Reader
UnHerd Reader
4 months ago

Yes. I’ve enjoyed seeing the “states’ rights” people suddenly switch to preferring federal power.
What other chaotic state-by-state patchworks could we do away with? Abortion rights? Gun rights?

Stephen Follows
Stephen Follows
4 months ago

So how can you have someone being President of one state but not another? If he’s allowed to stand in, say, Texas, but not in Colorado, that is what you’ll end up with.
That makes no sense, and I’m not an idiot either.

Peter F. Lee
Peter F. Lee
4 months ago

Trump was not convicted of an Insurrection and therefore entitled to be on the Ballot. SCOTUS should have left it at that. I think the state-by-state patchwork is going to cause serious issues in the future.

Michael McElwee
Michael McElwee
4 months ago

Answer: The refusal to see what is under one’s nose. Let’s look — a lone woman, acting entirely on her own, can, with the stroke of a pen, strike any person she wants from a State’s presidential ballot. So much for the consent of the governed. So much, that is, for the will of the people. The left is at war with the heart of democracy.

Jim Veenbaas
Jim Veenbaas
4 months ago

By the time the election is over in October, the media will have no credibility left – not that they have much now. They have already started blaming Republicans for the border crisis, and they are trying to convince us that Biden is fully cognizant and vibrant. NO ONE!! but Hunter and Jill Biden believe this, not even lifelong Dems.

Katharine Eyre
Katharine Eyre
4 months ago
Reply to  Jim Veenbaas

Do these media people even realise that they’re doing Trump’s campaign work for him? I mean this seriously, it’s not a rhetorical question.

Norman Powers
Norman Powers
4 months ago
Reply to  Katharine Eyre

They certainly understand and believe that there’s a link between their own volume of coverage and Trump’s fortunes. The “we got Trump elected” meme that went around left wing media and tech firms is clear evidence of that.
The problem for the media is that they can’t not cover elections. It just drives so much business for them and is a core expectation people have of the product.
Tech firms have no such needs and can/will easily suppress all mentions of Trump. But, they’re of secondary importance in this context.

Jim Veenbaas
Jim Veenbaas
4 months ago
Reply to  Katharine Eyre

They need Trump and to feed TDS for ratings.

laurence scaduto
laurence scaduto
4 months ago
Reply to  Katharine Eyre

Trump is not only the most annoying creature alive today (he’s worse than misquitoes!), he’s also a genius. He routinely gets his opponents to do his bidding; he’s been doing it for forty years. (Read about his bankruptcies back in the day. He pulled the same con three times, right in front of everyone, but new investors kept popping up, eager to be abused.)
He’s driven all my friends and family, and all of my once favorite media sources, into a vast maelstrom of anxiety and derangement. At this point they still seem to know that what they’re doing is wrong-headed, but they lost their grasp of why and they don’t know how to stop. If he wins they’ll be barking like dogs.
Very weird.

Samir Iker
Samir Iker
4 months ago

“he’s also a genius. He routinely gets his opponents to do his bidding; he’s been doing it for forty years.”
Sounds like the ideal guy to be elected president, assuming you wanted what is best for the country

The problem, from the point of view if the TDS crowd, why they are full of “anxiety and derangement”, is they don’t want what is best for the country. They want victimhood, identify politics, drama, female and black “liberation” even if their policies actually end up harming those groups much more.

Cantab Man
Cantab Man
4 months ago

‘Banish from the ballot any candidate name that is not approved by the apparatchik! Voters cannot be trusted with a free and fair election! We must destroy democracy in order to save it!’
And even Center-Left pundits like David French ran with such lunacy?
The Left seems to think that America secretly desires them to act as some sort of sociopathic savior (Savior Complex) when voters merely want their vote to be counted in a free and fair election.
If we see any further weeping, wailing and gnashing of teeth on the Left that the citizens of the United States of America (aka, the voters) have the final say, then we know that they definitely aren’t on the side of any viable definition of democracy.
(That said, perhaps someone should quietly point out to them that the US is actually a Constitutional Republic.)

Buena Vista
Buena Vista
4 months ago
Reply to  Cantab Man

And even Center-Left pundits babbling imbeciles like David French ran with such lunacy?

FIFY.

Derek Smith
Derek Smith
4 months ago

“This exposed an industry characterised by two qualities journalists traditionally found shameful: bias and inaccuracy.”

Surely the word you are looking for is ‘misinformation’.

Peter F. Lee
Peter F. Lee
4 months ago
Reply to  Derek Smith

all three.

Will K
Will K
4 months ago
Reply to  Derek Smith

It’s a common media technique, to write a “news report” which is biassed, even though it only contains substantiated facts. Only facts that support the desired conclusion are included, facts that indicate a different conclusion are omitted. Most readers find this very convincing, and it’s hard to spot until it is pointed out, after which it becomes glaringly obvious.

Adrian Smith
Adrian Smith
4 months ago

The irony of it all is that it is all the undemocratic means by which the Dems have tried to fight against Trump’s democratically expressed popularity ever since he first became a presidential candidate in 2016 that has led to so much of Trump’s popular support now.
The abject terror amongst Dems that that popular support will be democratically expressed in November becomes ever more palpable. It is possible, but unlikely, that rather than doubling down on undemocratic methods, the Dems will look internally to work out why they can’t achieve sufficiently greater level of popular democratically expressed support to get their own candidate elected.

Lisa Letendre
Lisa Letendre
4 months ago
Reply to  Adrian Smith

Democracy is not about being popular. And if Biden should be expelled on the basis of breaking the law, then so should Trump.

Peter F. Lee
Peter F. Lee
4 months ago
Reply to  Lisa Letendre

Not sure Biden is being expelled for breaking the law (or likely to be) but there is talk about him suffering from dementia – a well meaning old gentleman with a poor memory….Hur
(i thought democracy was all about being popular)

Lisa Letendre
Lisa Letendre
4 months ago

This is a ruling that an individual state cannot bar a presidential candidate. Not the same as should Trump be allowed to run at all because of his role in the insurrection.

Peter F. Lee
Peter F. Lee
4 months ago
Reply to  Lisa Letendre

You meant ‘Fedsurrection’
Oh and what role was that exactly, Lisa

Daniel Lee
Daniel Lee
4 months ago

The unfortunate mistake in this piece is in referring to folks like Maddow as “journalists” in any rational meaning of the term.

Thomas Wagner
Thomas Wagner
4 months ago
Reply to  Daniel Lee

I stand with Mark Twain, who said “A journalist is an out-of-work newspaperman.”
There are a lot of those around today.

Sensible Citizen
Sensible Citizen
4 months ago

Section 3 is obsolete. It was intended for post-reconstruction elections in a long-ago epoch. Weaponizing obsolete laws against the opposition party or dissenting voices is election interference.

David Kingsworthy
David Kingsworthy
4 months ago

Thanks for this article by EJ, I always like her commentary with the other EJ on the MK show.

Hans Daoghn
Hans Daoghn
4 months ago

The subtext of the unanimous SCOTUS ruling is this: Those who agree with the Colorado Supreme Court action to ban Trump from the state’s ballot are the true insurrectionists against our Constitution They are the enemies of Democracy.

Maddow, Raskins, Schumer and Schiff will not accept this.

Peter F. Lee
Peter F. Lee
4 months ago

Recently we had Talia, now we have Lisa L.,