Earlier today we heard the good news that the Supreme Court ruled unanimously that the once and future President Trump can indeed remain on the ballot. It also shouldn’t shock you that there is a meltdown happening today on the left—we knew one was coming the moment it was verified that the Supreme Court had ruled in Trump’s favor. You can enjoy the tears of the fascists here, here, here and here.
Jokes aside, if you want to have sober, principled yet liberal legal analysis, it’s hard to beat Professor Jonathan Turley. We don’t always agree with him, but we always believe he is trying his best in good faith to reach the right conclusion, which is getting distressingly rare these days. So first, we see him offering his quick analysis on Fox News:
🚨 @JonathanTurley comments on Supreme Court decision to keep Donald Trump on the ballot:
— Benny Johnson (@bennyjohnson) March 4, 2024
“It doesn’t look like there are any real dissents, so it does look like it’s unanimous.” pic.twitter.com/dFHT1HINNN
Then he shared more commentary on Twitter/X:
As expected, the Supreme Court has now unanimously rejected what was described for months as an "unassailable theory." https://t.co/4BTIKmNDIL The Court showed a divided nation that we remain bound by shared constitutional values. https://t.co/bkygrzShas
— Jonathan Turley (@JonathanTurley) March 4, 2024
Please note that due to the lame way that Twitter/X handles links, the picture is a link to a piece by Turley where he discusses the oral argument, while the more traditional-looking link is to the opinion itself.
He goes on:
...While there were concurrences arguing that the decision was broader than necessary, Barrett correctly noted in her concurrence that "for present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case."
— Jonathan Turley (@JonathanTurley) March 4, 2024
...While this "unassailable theory" was given endless and almost exclusive coverage on some outlets, it failed to garner a single vote on the left or the right of the Court. I respect some of the academics who subscribed to this theory, including some who offered important…
— Jonathan Turley (@JonathanTurley) March 4, 2024
The remaining text reads:
I respect some of the academics who subscribed to this theory, including some who offered important scholarship in support of it. However, many people heard little of the opposing views on many outlets on the historical, textual, and practical flaws in these arguments...
We had zero respect for the argument when applied to Trump, because it required the Colorado Supreme Court to violate Trump’s First Amendment rights in order to take away the people’s right to vote for the candidate of our choice. Just to be clear, Trump’s name was in the caption, but it was the American people who won today. Because of this ruling, we are free to vote for Trump for President, or not to, as we are inclined.
Turley goes on:
...It is important to also commend the many Democratic officials, judges, and justices who stood firm in rejecting this theory. Colorado, Maine, and most recently Illinois are the outliers. Even on the Colorado Supreme Court, three of the seven Democratically appointed justices…
— Jonathan Turley (@JonathanTurley) March 4, 2024
The remaining text says:
Even on the Colorado Supreme Court, three of the seven Democratically appointed justices rejected this theory and opposed disqualification. Now three liberal justices have added their voices against this theory that states can unilaterally disqualify candidates in this way.
And this raises an important point, hammered home by the unanimity of today’s decision: This adventure in vote suppression was opposed by many liberals.
Also Turley turned up the sarcasm meter to 'scathing' not too long ago:
Colorado Secretary of State Jena Griswold; "My larger reaction is disappointment." One might have hoped for a modicum of contrition after being unanimously found to have violated the Constitution in an effort to deny citizens the ability to vote for their preferred candidate...
— Jonathan Turley (@JonathanTurley) March 4, 2024
...Griswold just said on CNN "it is my job to uphold the Constitution." To the extent that that is her job, today's opinion is hardly a roaring performance review.
— Jonathan Turley (@JonathanTurley) March 4, 2024
But we want to take a moment to dig deeper into the opinion and what it means going forward. As we said this morning, the decision was unanimous. Indeed, as we write this, the phrase ‘9-0 Trump’ is trending on Twitter/X, to our great amusement. It is also a ‘per curiam’ opinion which means that there is no official author. Earlier today, we wondered if there were any concurrences, providing this quick primer on what a concurrence is:
But we haven’t heard if there are any concurrences—that is, opinions that agree with the result, but want to say something separate. Concurrences can either say something extra or perhaps agree with the result but not the reasoning. That kind of information will come when we can actually dive into the opinion.
And thus, as prophesized, we can now report that there are two concurrences. One is by Justice Barrett and the other is a joint opinion by the three liberals—Sotomayor, Kagan and Jackson. That would be another opinion with no single official author—the second in this case, if you are counting.
We’ll naturally start with the majority, per curiam opinion. We will begin by saying that while no single author is identified, we strongly suspect that Chief Justice Roberts is the author. And we would be inclined to think it would be literally him writing it. While justices regularly let their clerks take a stab at the first draft, we suspect he would want to make sure each word is specifically crafted to achieve a specific outcome: To end the controversy here and now.
We will explain why we think Roberts is the author as we go on. We say that knowing that Roberts is not very popular in conservative circles these days. It is fair to say that Roberts is a wavering conservative on the Supreme Court, and a reasonable conservative reader might worry that Roberts did a bad job with this. Well, in this case, it is a pretty good opinion, from a conservative perspective.
To go through the opinion—and it is truly a short opinion, only thirteen pages with very wide margins as is their style—they take a few pages ‘setting the table’—talking about the history of this litigation and the rulings below. We will note two things in that table-setting portion. First, they quote the relevant language from Section 3 of the Fourteenth Amendment, which says that:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Recommended
We have summarized the argument against Trump before as follows:
So, the argument goes like this: Trump took an oath, as an officer of the United States, to support the Constitution of the United States. He engaged in insurrection by inciting the riot on January 6, 2021. Therefore, he is pretty much disqualified to hold any office in the United States (including in state government) unless two thirds of Congress votes to remove the disqualification.
Now, obviously in context we were not saying Trump actually engaged in insurrection by incitement. We have been pretty vocal in arguing that you can’t call Trump’s speech on January 6, 2021, incitement without doing violence to the First Amendment and we have called out the Colorado Supreme Court for actually engaging in deception when arguing that Trump committed incitement. What we were doing was accepting that he had done so only for the sake of argument.
That rolls right into the second thing to note about the table-setting portion: All of the justices in this case do the same thing, accepting that Trump committed insurrection only for the sake of argument, saying in essence that ‘even if Trump is an insurrectionist, he still wins and here is why.’ So, if you see anyone taking a quote out of context and saying that the any of the opinions said he was an insurrectionist, just know that this is deceptive. Not even the concurrences have said Trump is definitely an insurrectionist.
Further, when starting its analysis, the opinion discusses the Fourteenth Amendment as a whole and its history. Part of the purpose of the discussion is to point out that most of the Fourteenth Amendment is about limiting the power of the states and it is careful to highlight that Congress is given the power to enforce the Fourteenth Amendment through Section 5, which reads:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The fact that legislation is the only method mentioned is going to be important in a minute.
And it is worth noting that in academic circles, the term ‘appropriate’ has been argued to be a reference to McCulloch v. Maryland, 17 U.S. 316 (1819), a foundational decision that talked about what powers Congress had under the Constitution. If all you know about McCulloch is that it struck down a state tax on the national bank and that the Supreme Court said that ‘the power to tax involves the power to destroy’ you’re only getting part of the picture. Maryland had argued that the bank was itself unconstitutional, so therefore it was fine for them to have the power to tax or destroy it. This claim led the Supreme Court to have an extended discussion about how the Constitution was to be interpreted in order to argue that the national bank was indeed constitutional.
The basic argument that Chief Justice Marshall made was that the Constitution doesn’t really talk very much in terms of details but in terms of goals or ‘ends.’ If a goal is banned for the Federal Government, then the Constitution prohibits the Federal Government from pursuing it by any means. So, for instance, the First Amendment sets up a bunch of goals that the Federal Government cannot pursue by any means. But if Congress can pursue a goal, the Marshall Court said:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
(Emphasis added.) So, it is argued (and we think credibly), that the founders of the Fourteenth Amendment were referencing that part of the McCulloch decision in choosing the language of Section 5.
So, after all that table setting, we get to the meat of the decision and right away, we see the first sign that Roberts wrote it. The discussion starts off with a pretty ordinary declaration that our Federal Government is one of limited powers:
‘In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.’ Bond v. United States, 572 U. S. 844, 854 (2014).
This is actually a pretty normal statement about federal versus state power and we could probably find hundreds of similar declarations in the Supreme Court’s cases. However, if you look up that case, you will discover that this particular quote was written by Roberts. And most justices like to quote themselves.
In any case, the opinion argues that states naturally have a sovereign right to disqualify people for state offices as part of their right to run their own governments, but this doesn’t apply to federal office holders. (This is on page 6 of the opinion if you are following along.) This is important because in the past, the states have been able to disqualify insurrectionists from holding state offices on their own, but the Court is arguing that disqualifying them from holding federal office is another matter, because that impacts the Federal Government’s sovereignty.
Next the Court makes an important move. Let’s notice here a subtlety in the language of Section 3. We’ll quote it again, so you don’t have to scroll up:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
So … if you are an ‘oath-breaking insurrectionist’ what are you prohibited from doing? Are you prohibited from running for office? No. Are you prohibited from being sworn in? No—or at least, not just that. You are prohibited from holding office at all. If Trump truly committed insurrection on January 6, 2021, then he immediately stopped being the lawful president of the United States the moment he did it. One can debate about the exact second during the day where he would lose his office January 6, but certainly by January 7, 2021, he wouldn’t be president in that scenario. And crucially, Colorado is not claiming it has the power to decide that a current president can’t finish his or her term after committing insurrection. From the opinion:
As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that ‘the Constitution guarantees ‘the entire independence of the General Government from any control by the respective States.’’ Trump v. Vance, 591 U. S. 786, 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914)). …
The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office.
Now, again, we see the author of this unsigned opinion quoting another Roberts opinion (the Vance case), but let’s not get distracted by this evidence that Roberts is the author of today’s opinion.
Let’s focus instead on how the opinion is showing how inconsistent Colorado’s assertion of power is. Colorado is admitting that they couldn’t remove Trump on January 7, 2021, but somehow they could keep him off the ballot?
And then we get to the point of the opinion we call the "big picture moment." After pointing out that nothing in the Fourteenth Amendment grants the states the power to disqualify insurrectionists, the opinion says:
This can hardly come as a surprise, given that the substantive provisions of the Amendment embody significant limitations on state authority. … Under the Amendment, States cannot abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (without thereby suffering reduced representation in the House). … On the other hand, the Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States. It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office.
(Citations and quotation marks omitted.) This was the moment when we realized this was probably a Roberts opinion because this echoes the ‘killer’ question he offered during oral argument. We previously dove deep into that oral argument but here’s what Roberts said:
Counsel, I'd like to sort of look at Justice Thomas's question sort of from the 30,000-foot level. I mean, the whole point of the Fourteenth Amendment was to restrict state power, right? States shall not abridge privilege of immunity, they won't deprive people of property without due process, they won't deny equal protection. And on the other hand, it augmented federal power under Section 5. Congress has the power to enforce it.
So wouldn't that be the last place that you'd look for authorization for the states, including [former] Confederate states, to enforce -- implicitly authorize to enforce the presidential election process? That -- that seems to be a position that is at -- at war with the whole thrust of the Fourteenth Amendment and very ahistorical.
It’s not conclusive, but we consider it strong evidence that Roberts wrote today’s opinion.
We also find it interesting the way that the opinion used another major argument—the fact that Congress can remove this disqualification—to argue that states cannot enforce this section, writing that:
The text of Section 3 reinforces these conclusions. Its final sentence empowers Congress to ‘remove’ any Section 3 ‘disability’ by a two-thirds vote of each house. The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. … In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office. But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle.
(Citations removed.) Previously, when discussing the oral argument, we wrote that this made the Section 3 disqualification different from factors like age or natural born citizenship status, because those requirements can’t be reversed (short of a constitutional amendment):
But in the case of the Fourteenth Amendment’s disqualification, there could easily be a situation where an alleged insurrectionist wins in November and then before he or she is sworn in, in January, Congress holds the necessary votes in order to lift the disability and let him or her take office. Therefore, it is wrong for any state to take a candidate off the ballot for insurrection, because in theory even if the candidate was an insurrectionist, Congress could lift that disability. Of course, since it requires a two-thirds vote in both houses of Congress, we don’t think that is very likely to happen for Trump, but courts don’t get into the game of guessing how Congress might vote on a topic.
The opinion takes that point and folds it into how it interprets the language of the amendment itself.
Moving on—and we are now on page nine—the Court goes into the fact that there is also no tradition of states disqualifying federal office holders—disposing of one attempt by a state in the footnotes. This is not just an argument that we should keep doing what we did in the past, but it is also an indication that the founders of the Fourteenth Amendment did not believe that the amendment gave states that power. They regularly disqualified people from holding state office, but generally didn’t assert it with regards to federal offices.
And then the opinion says something important that is going to be a point of contention. It says:
Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders.
The opinion goes on to discuss the history of legislation on this topic. The strong implication from this passage—and a point of contention with the concurrences—is that only Congress can address this issue, and Congress can only do so by legislation and not by any other means. This addresses a concern we had when discussing the oral argument. As we wrote back then:
The downside of this approach is that it doesn’t settle the question of Trump’s qualification. Instead, it basically kicks the can down the road to when and if Trump wins. Of course, if he is loses all of this is moot, anyway, but suppose he wins enough votes in the electoral college? Can various officials in the Biden administration refuse to recognize his election because they believe he is supposedly an insurrectionist? Can Kamala Harris refuse to certify the results? If he is sworn in, can people sue to say that everything Trump does is illegal because he can’t hold office due to being a rebel (with or without a cause)? Jokes aside, winning on this ground might lead us to a constitutional crisis down the road.
By implying that only Congress can enforce Section 3 and only by legislation, basically it avoids that constitutional crisis we were concerned about. The various officials in the Biden administration can’t refuse to recognize his election. Harris can’t refuse to certify the results. And any such lawsuits would have to be dismissed.
And there is a law currently on the books that allows for disqualification: 18 U.S.C. §2383, covering ‘Rebellion or insurrection.’ And this is what it says:
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.
Thus, this disqualification would be a punishment for being convicted of ‘rebellion or insurrection.’ Therefore, the law, as it stands now, couldn’t be invoked without Trump being convicted of these crimes. Of course, we wouldn’t put it past partisan attack dog Jack Smith try to charge Trump with that crime just to get him off the ballot, but as we noted previously, there really isn’t time to do that sort of thing. If he got Trump indicted for rebellion/insurrection today, there simply isn’t time to hold a trial before the election.
Of course, Congress could also pass a new law that creates a new procedure. The opinion notes that
Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3.
Thus, in theory Congress could pass a law making it possible for United States Attorney, or perhaps a special counsel, to file a similar civil action, to remove insurrectionists from state and federal office, and maybe even from the Presidential ballot. But what are the chances such a thing would actually pass Congress before the election? Or if Trump wins, what are the chances it would passed over his veto? In theory, the Supreme Court is leaving some doors open, but in reality, it's over as far as Trump is concerned. Assuming he wins the primary, he will be on the ballot in November.
On page 10 and going through page 11, the opinion talks about how Congress’ enforcement power under Section 5 is still limited. The opinion uses that to argue that if states were allowed to enforce Section 3 their enforcement power would be broader—feeding again into the argument that it makes no sense to interpret Section 3 as granting states new powers over the federal government.
And finally, the Supreme Court makes the point that this would result in one state ruling that a person is disqualified while another might rule that he or she is not, often based on literally the same incident, the same facts and the same record.
Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.
So, that is it, as far as reasoning is concerned, but on the last page, the Court takes a moment to talk about the existence of the concurrences:
All nine Members of the Court agree with that result. Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it 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.
To paraphrase, ‘concurrences or not, we are unanimous in saying that Colorado (and the other states) can’t enforce this part of the Fourteenth Amendment.’ That overrules every state action to take Trump off the ballot based on Section 3.
That gets us to the first concurrence, by Barrett. Hers is very short. This is the main part of it:
I join Parts I and II–B of the Court’s opinion. 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.
It's important to note that she is not even saying she disagrees with the majority, just that she wished they didn’t get to that issue. She also says:
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.
Then we start with the three-liberal concurrence and they start off with this quote:
‘If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.’ Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment).
Essentially, their argument is that the Supreme Court doesn’t have to decide whether Congress has to use legislation to enforce section 3, so they shouldn’t.
We think there is some merit to that, but the other end is that if this isn’t settled, it could play havoc on our election process. Again, imagine if Kamala Harris, who is expected to preside over the Senate until January 20, 2025, decided she would not certify a Trump victory? Leaving that unresolved makes a future constitutional crisis all the more likely.
And, let’s take a moment to note that they are making this point by citing Roberts’ (ridiculous) concurrence in Dobbs. As you might recall, Dobbs was the decision that overturned Roe v. Wade and the entire line of cases it spawned that claimed that there was a right to abortion somewhere in the Constitution, in the shadows or something. (We are being sarcastic, but that is actually the reasoning—it is in the shadows of other amendments.) You might have heard that Dobbs was a 6-3 decision, but that is a little deceptive. Roberts wrote a concurrence in that case that literally said he only agreed with the result of upholding Mississippi’s abortion law. He did not agree with the majority opinion that declared that Roe was overturned. So it is best to say that it was a 6-3 decision upholding the law at issue, and a 5-4 decision overturning Roe. He wanted in essence for the Supreme Court to have secretly decided Roe was overturned while the public is left guessing. And we guess he assumed the liberal justices would just keep quiet about it? It was really one of his worst-argued opinions.
This is probably a good time to share our theory of what drives Roberts. We think his judicial instincts are essentially conservative, but we also think he is terrified that the Democrats will destroy the Supreme Court as an institution. In a previous post, we talked about how Senator Warren proposed to pack the Supreme Court. In doing so, we noted that she was invoking the history of how President Franklin Roosevelt once proposed a court-packing scheme and how the proposal ultimately failed to get past Congress, writing that:
But [the court packing plan] wasn’t a complete failure.
It was successful in bullying the Supreme Court into compliance. In legal circles (which certainly includes Senator Warren), it is generally agreed that in the same year the court packing proposal was defeated, Justice Owen Roberts suddenly started voting to uphold major provisions of the New Deal. That gave the liberal justices on the Supreme Court at the time just enough votes to uphold the New Deal in case-after-case. The common belief is that Owen Roberts did this in order to reduce anger at the Supreme Court so that no such proposals to pack the court would succeed. In legal circles, this is called ‘the switch in time, that saved nine.’
In short, it was the classic tactic used by weaker children to keep bullies from beating them up: Give the bullies whatever they want. It is understandably human, but not very good when our Constitution is supposed to grant certain rights that are not to be violated. It is fair to draw a direct line between that successful act of bullying to [the Japanese internment during World War II.] …
Yes, six years later, Fred Korematsu brought his challenge to Japanese internment to the Supreme Court, arguing that the mere fact he was Japanese did not justify imprisonment. But by then, he was facing a court too timid to stand up to a wartime president and so he was told his detention was lawful in Korematsu v. United States, 323 U.S. 214 (1944).
That is the dark history Senator Warren is attempting to repeat.
(Emphasis added.) While Warren was the focus of our anger in that post, many other Democrats deliberately tried to intimidate the Supreme Court in recent years, including President Obama. So why did Roberts twist himself in knots to uphold Obamacare, for instance? Because he was scared that if the Supreme Court struck it down, the Democrats would destroy the Supreme Court as an institution. Similarly, he was deeply afraid of explicitly overturning Roe v. Wade, because he was terrified of what these bullies might do.
But we also think at the time same that cut against Democrats in this case. As we wrote when reporting that the Supreme Court took this case:
We have no doubt that this case is a headache [Roberts] didn’t want, but we also suspect that the concern for the institution of the Court will cut against the Democrats in this case. Democrats complain that in Bush v. Gore, 531 U.S. 98 (2000) that the Supreme Court basically called the election for Bush, ignoring that effectively Gore had forced the courts to decide the issue. Here, if the Democrats win, the Supreme Court will effectively call the Republican primary against Trump—if they rule in Colorado’s favor, that’s almost certainly going to prevent him from being president again as a legal bar. But if they rule against this anti-democratic impulse, anyone could still win the Republican primary or the general election. So, Roberts might recognize that the simplest way to stay out of the politics is to rule in Trump’s favor and then let the election play out.
Of course, there are lots of leftists all stompy-foot mad today that the American people will be allowed to have Trump as president if they should decide to elect him. But most people understand that ‘we can’t let people vote for the candidate they want’ is not a pro-democracy argument. If Democrats ever convince the American people to overthrow the Supreme Court, we don’t think it will be based on the rallying cry of ‘how dare the Supreme Court let you vote for Trump if you want!’—and we doubt that Roberts feels differently on that point.
In any case, unlike Barrett who just says she doesn’t want the court to address whether or not legislation is the exclusive way to enforce section 3, these three liberals also make the argument that other methods of enforcement should be available. Their main argument is captured in this passage:
To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that ‘[n]o person shall’ hold certain positions and offices if they are oath-breaking insurrectionists. Amdt. 14. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is ‘critical’ (or, for that matter, what that word means in this context). Ante, at 5. In fact, the text cuts the opposite way. Section 3 provides that when an oath-breaking insurrectionist is disqualified, ‘Congress may by a vote of two-thirds of each House, remove such disability.’ It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.
Thus, their argument is ‘why should it take a supermajority to remove the disqualification if they can prevent the disqualification from happening in the first place by not passing a law?’ The problem with that argument is that it ignores the difference between how a statute works, versus how the removal of a disability would work.
Congress cannot simply pass a law that says ‘Former President Donald J. Trump is hereby disqualified from state and federal office under Section 3 of the Fourteenth Amendment due to being an insurrectionist.’ That would offend the prohibition on Bills of Attainder found in the original Constitution. Congressional laws penalizing one person are generally prohibited and thus they would have to pass a general law. So, any law passed by Congress is likely to apply to entire groups of people. By comparison, the action to lift the disability could be for specific individuals.
To apply it to a historical example, one might imagine a general law disqualifying a large number of former Confederate officers in the wake of the Civil War. But then former Confederate General James Longstreet might end up elected to Congress and, before he is seated, Congress makes the requisite vote to remove his disability. The disqualification would be general, but the removal of that disability would be individual to him. Thus it explains why it would be harder to make that exception—because it would be unequal application of that general law, requiring a greater consensus to justify it. Thus, the three liberals' argument doesn’t actually prove what they claim it does.
Also, as we worked on this, Mark Joseph Stern discovered something interesting. There is a tiny artifact in the decision:
If you double click where it says "JJ." at the top, then copy and paste it, that line reads: SOTOMAYOR , J., concurring in part and dissenting in part.
— Mark Joseph Stern (@mjs_DC) March 4, 2024
And if you do a control-F search for "SOTOMAYOR , J., concurring in part and dissenting in part," it highlights that same line. pic.twitter.com/JEhuTdSibZ
He goes on to speculate as follows:
I see that the copy-paste approach doesn't work on every computer, but the control-F approach should.
— Mark Joseph Stern (@mjs_DC) March 4, 2024
It's also still in the metadata! https://t.co/PeUKRm0QK8
— Mark Joseph Stern (@mjs_DC) March 4, 2024
We couldn’t verify the copy and paste trick or the metadata claim, but when we did a Control-F search for the words ‘and dissenting in part’ it did highlight the header on the first page of the three-liberal concurrence. But that only tells us that at some point someone seemed to have that language in there, but it's unclear who put that language in, who removed it or why. There is a good chance that in the process of creating a single PDF, that people unaffiliated with any particular justice complied it and that person or persons might have made an error. Furthermore, it literally might be nothing more than an artifact of an unrelated document. We could easily imagine a scenario where, say, Justice Kagan wrote the opinion starting with a prior opinion that had that language as a base and then accidentally left it in the header. The fact that this is only found on one page out of a five-page concurrence bolsters the intuition that this reflects nothing more than an error and not any part of the actual deliberation process.
None of which stopped Elie Mystal (who is a man) from getting conspiratorial about it, writing on Twitter/X:
If the liberals were originally dissenting and Roberts bullied them into “concurring” so stupid people can run around saying “9-0”, id really like to know what the liberals GOT in exchange for this bulls—t.
… cause it wasn’t immunity.
(We didn't embed the post because he had a curse word in it, and we needed to edit his text to remove that curse word.)
To address his suggestion of bullying, Roberts has no ability to bully them into doing anything. A chief justice really, truly, has no special power over the rest of the Court. His only relevant "power" is he is automatically considered the most senior justice, even thought he is not chronologically the most senior, which allows him to assign opinions when he is in the majority. That gives him very little additional power, and certainly not enough to bully a dissenter. No, if the liberals had genuinely changed from ‘concurring in part and dissenting in part’ to ‘concurring in judgment’ in order to present a more unified front, then the reason for that would probably be all of the attempts by the left to bully the Supreme Court. Roberts’ most persuasive argument would be ‘we need to present a united front, or the lunatics on the left will destroy this Court as an institution’ (though he would probably not say it in quite those terms) and the liberals on the Court believed that it was better to save the Supreme Court as an institution than to let it get destroyed. If Mystal needs to find someone to blame for today’s unity, maybe he should look in the mirror, because it is rhetoric like this that pushes Supreme Court justices to want to put up a more united front:
I view the Supreme Court like Batman views Superman: a powerful alien untethered from the laws of physics who is a threat to freedom.
— Elie Mystal (@ElieNYC) March 1, 2024
These people are not our friends, and they must be stopped and held accountable by the people.
My latest in @thenation https://t.co/OCDsqIkMlV
Mad Scientist Fat Albert Mystal wants the people to hold the Supreme Court accountable, for letting the people vote for the candidate they want, or something. His argument is incoherent.
Finally, as we wrote this, we noticed a bit of trivia that has a bit of a sting. As we mentioned, the per curiam opinion is only 13 pages long. That makes it one of the shorter opinions ever produced by the Supreme Court and we are just nerdy enough to remember that this is also how long the majority opinion was in Loving v. Virginia, 388 U.S. 1 (1967). As you might know, that case involved whether or not a state could prohibit interracial marriages (the Supreme Court correctly said they couldn’t) and we joke that it is the most perfectly named opinion in history, because in a very real way, Virginia was literally against ‘loving.’
(‘Loving’ was actually the married name of the couple involved. Legally the other party in the case was not the emotion of love or something like that, coincidences aside.)
But it is also one page shorter than the length of an even more famous opinion: Brown v. Board of Education, 347 U.S. 483 (1954). That case clocks in at fourteen pages, but we made that comparison because we happened to know a bit of trivia about that decision. When Chief Justice Warren was writing that opinion, he intentionally made it that length because he believed that if the opinion was that short, that the press would be willing to put the entire opinion in their newspapers, which he believed would encourage acceptance of what he knew would be a controversial decision.
We never heard of him having the same motivation in keeping Loving short (Warren wrote that opinion, too), but one has to wonder if Chief Justice Roberts—or whoever wrote today’s opinion—was also keeping the opinion similarly short for the same reason. Of course, Warren wrote Brown to ‘sell’ the opinion to a very different media landscape. These days, if a person wants to read what the Supreme Court says, news websites are happy to link to or embed even large opinions and we are pretty sure that the physical newspapers and news magazines you can buy at your local supermarket aren’t going to bother reprinting even a short opinion. Still, the author of today’s opinion might have also reasoned that if the opinion was short, the public will be more likely to actually read it.
It also makes us wonder if Chief Justice Roberts took another page from Chief Justice Warren's maneuvers when writing Brown. Normally, after oral argument is heard, the Supreme Court justices meet together in conference and discuss where they stand. They usually tell the other justices what they have (provisionally) decided or where they are leaning right up front. But Warren encouraged them just to talk about the case and not to declare how they would vote right away. Warren understood that when a person declares how they are going to vote on a topic, it is often very hard to change their minds. But if you can get them to avoid taking a stand, they become easier to persuade. And for Warren it was very important to have a unanimous decision in Brown because he knew how controversial it would be. This is pure speculation, but we wonder if Roberts did something similar, here, because he also understood that it was important to be unanimous.
In any case, we said it this morning and we will say it again. This decision was good for the Republic. While we have always said that we would have preferred that the Supreme Court actually declare Trump innocent of any insurrection, because he did not meet the test for incitement, this is a ‘second-best’ solution. As we wrote when the Supreme Court first took the case:
Even if they don't rule on the First Amendment, they need to rule so the issue is put to bed. The American people need to know as soon as possible whether they will be allowed to vote for Trump. We hope the Supreme Court will rise to this moment, do the right thing and do it quickly.
We are happy to say our own words have aged well on this point. They did the right thing and, when talking about courts, taking about two months to resolve the issue is doing it quickly—even if that is pretty slow in most other contexts. With this cloud effectively removed, the primaries and the general election can focus on the kinds of issues that elections should be decided on—the candidates’ records, the candidate’s positions, the candidates character and so on.
Of course, if you think Trump is an evil insurrectionist who literally tried to overthrow democracy, you are free to vote accordingly. But that’s the key. You are free to vote for Trump, Biden, someone else, or for no one at all, and to cast that vote (or not) for a good reason, a bad reason, or no reason at all. And for that you can thank a unanimous Supreme Court.
***
Editor’s Note: Do you enjoy Twitchy’s conservative reporting taking on the radical left and woke media? Support our work so that we can continue to bring you the truth. Join Twitchy VIP and use the promo code SAVEAMERICA to get 50% off your VIP membership!
Join the conversation as a VIP Member