Underlying the unanimous ruling, a 5-4 dispute about the majority limiting federal power to enforce the 14th Amendment's "insurrection" disqualification clause.
An excellent post, thank you. This morning I also read a post by Steve Vladeck (Substack: One First) which asked the question: "What does this Court believe its role to be?" He questions their consistency in the rulings they make. I get the impression that the majority are not interpreting law, but writing law to reflect their personal beliefs, which should not be their function as a separate branch of the government.
The 14th Amendment doesn't specify that a state cannot refuse to put a candidate on the ballot if they have violated this Amendment, but that it is only the Federal Government that can do so. If Colorado properly by their state constitution ruled that Mr. Trump is guilty of insurrection, then it appears that they should be able to exclude him from their ballot. If the Federal Congress disagrees with that state ruling, then the 14th Amendment has the provision that Congress can with a 2/3rd majority in each house remove this "disability".
Yes, it would certainly be chaos if some states included Mr. Trump on their ballots & some excluded him, but Congress could fix that, could they not? I get the impression that this possible ensuing chaos is the reason for the ruling, but the Court certainly didn't care about chaos when they overturned a woman's right to chose.
Well, arguments before the Court back in February focused on (1), the ability of one state to decide the national candidacy of a major party's leading figure, and (2), the "need" for federal enforcement legislation per §5. Certainly easy enough to get 5/9 on those two questions, and the 3 concurring Justices weren't about to roil a manufactured "consensus". At least Sotomayor et al raised the "insurrection" question, notably ducked in the PC decision.
As for Justice Coney Barrett, the phrase "lowering the national temperature" was questionable, as it unnecessarily highlighted the *political* aspect of the 9-0 decision, and seemingly tried to excuse quite frankly the inexcusable, i.e., an insurrectionist left on the ballot .
States' rights to take away the bodily autonomy of their citizens, but not to decide who is on their ballots in our federal system (that's why we have the electoral college instead of direct election of the president). Got it.
Open your eyes!! Scotus is corrupt. Trump nominated the alt right so called justices. It is somehow a copy paste of bush vs gore. The fascist coup is going forward. This is why von trump is still laughing. He cannot be defeated. They are the complotists. They are the biggest danger. Time to wake up and vote blue.
States still have rules for inclusion on ballot that involve number of signatures, for one, doesn't this ruling open up a challenge from minor candidates who want to be on the ballot but can't get enough signatures or any other requirement designed to make ballots less crowded?
That was as an un-gratifying display of ketchup on the wall rationale as might have been expected.
The result was sound: There has got to me a national rule of applicability for national office and you can't get there by leaving it to the states to pick and choose. Ergo, no Colorado, you don't get to decide. (Supposedly, no such concern as to age and citizenship exists, by negative implication, but there you are.)
The majority's rationale reads like the residual trauma of a law student who once got dinged for failing to game out all the possible variations on a theme of a conflict of laws hypothetical and over-learned the lesson. (Like gunning for a A on the bar exam when you ever only learn is pass/fail.) They went in and mucked about trying to craft the very uniform rule that was missing because Congress can't be trusted with its Article 5 powers under the Fourteenth Amendment to do the job right. Only activist unelected justices can be trusted with that.
The judicial conservatives writing separately to concur in the judgment but to take the Gang of Five to school on over-reach got it right. Justice Barrett on her own said "you didn't need to go there guys—Occam gives a smoother shave." Justice Sotomayor, Justice Kagan and Justice Jackson finished the job: 'Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President."
Two geeky points.
The majority mal-identifies the provenance of 18 U. S. C. §2383. That is the part of the 1948 recodification of federal criminal statutes. Specifically, 18 U.S.C. § 2383 recodified section 4 of the previous Sedition Act of 1918 (40 Stat. 553). The Sedition Act of 1918 was an amendment to the Espionage Act of 1917 passed during World War I. Wrong monkey with the wrong organ grinder.
For guys into history and tradition, they might have picked up where the direct fallout from the Civil War settled into the dust. Act of June 6, 1898, ch. 389, 30 Stat. 432. The specific provision removing the disability is found in section 6 of the act, which states:
"That the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed."
This provision can be found on page 432 of volume 30 of the United States Statutes at Large (abbreviated as "30 Stat. 432").
Congress left Section 3 implementation slumber in the over-optimistic hope that it would no longer be needed in the future. But no one suggests that anyone was flogging the idea that it would no longer possibly be needed. They were right to leave Sleeping Beauty to her slumbers but now might be a good time for Congress to bestow a kiss.
So where it says the disability can be removed by a 2/3 vote of Congress - has this been nullified now? Or somehow Presidents are excluded from needed Congress to remove their disability according to the five men who love being Kings and making new law?
True to form, the extremist wing of a discredited Court gratuitously reaches for opportunity to impose views unanchored in law, precedent, or present need. It qualifies as self-indulgent overreach of patent bias, not serious jurisprudence. If their express intent were to devolve from discredited to dismissible, they could hardly do more.
Missing here is that this seemingly didn't just apply to the Presidency, but to all Federal positions including apparently Congress... who are voted in individually in their states, not nationally.
Barrett’s opinion boils down to: I agree with my sisters but they’re not being ladylike.
Now for a question—why did her opinion precede Sotomayor’s, where SS had seniority? It lends credence to the theory that it started as a dissent (normally appearing after concurrences) and got reined in.
Once again, the textualists are not strict textualists when the text doesn’t provide the answer they want.
An excellent post, thank you. This morning I also read a post by Steve Vladeck (Substack: One First) which asked the question: "What does this Court believe its role to be?" He questions their consistency in the rulings they make. I get the impression that the majority are not interpreting law, but writing law to reflect their personal beliefs, which should not be their function as a separate branch of the government.
The 14th Amendment doesn't specify that a state cannot refuse to put a candidate on the ballot if they have violated this Amendment, but that it is only the Federal Government that can do so. If Colorado properly by their state constitution ruled that Mr. Trump is guilty of insurrection, then it appears that they should be able to exclude him from their ballot. If the Federal Congress disagrees with that state ruling, then the 14th Amendment has the provision that Congress can with a 2/3rd majority in each house remove this "disability".
Yes, it would certainly be chaos if some states included Mr. Trump on their ballots & some excluded him, but Congress could fix that, could they not? I get the impression that this possible ensuing chaos is the reason for the ruling, but the Court certainly didn't care about chaos when they overturned a woman's right to chose.
Well, arguments before the Court back in February focused on (1), the ability of one state to decide the national candidacy of a major party's leading figure, and (2), the "need" for federal enforcement legislation per §5. Certainly easy enough to get 5/9 on those two questions, and the 3 concurring Justices weren't about to roil a manufactured "consensus". At least Sotomayor et al raised the "insurrection" question, notably ducked in the PC decision.
As for Justice Coney Barrett, the phrase "lowering the national temperature" was questionable, as it unnecessarily highlighted the *political* aspect of the 9-0 decision, and seemingly tried to excuse quite frankly the inexcusable, i.e., an insurrectionist left on the ballot .
States' rights to take away the bodily autonomy of their citizens, but not to decide who is on their ballots in our federal system (that's why we have the electoral college instead of direct election of the president). Got it.
Open your eyes!! Scotus is corrupt. Trump nominated the alt right so called justices. It is somehow a copy paste of bush vs gore. The fascist coup is going forward. This is why von trump is still laughing. He cannot be defeated. They are the complotists. They are the biggest danger. Time to wake up and vote blue.
SCOTUS fears Trump.
States still have rules for inclusion on ballot that involve number of signatures, for one, doesn't this ruling open up a challenge from minor candidates who want to be on the ballot but can't get enough signatures or any other requirement designed to make ballots less crowded?
You caught all of the important bits in one post. Excellent.
That was as an un-gratifying display of ketchup on the wall rationale as might have been expected.
The result was sound: There has got to me a national rule of applicability for national office and you can't get there by leaving it to the states to pick and choose. Ergo, no Colorado, you don't get to decide. (Supposedly, no such concern as to age and citizenship exists, by negative implication, but there you are.)
The majority's rationale reads like the residual trauma of a law student who once got dinged for failing to game out all the possible variations on a theme of a conflict of laws hypothetical and over-learned the lesson. (Like gunning for a A on the bar exam when you ever only learn is pass/fail.) They went in and mucked about trying to craft the very uniform rule that was missing because Congress can't be trusted with its Article 5 powers under the Fourteenth Amendment to do the job right. Only activist unelected justices can be trusted with that.
The judicial conservatives writing separately to concur in the judgment but to take the Gang of Five to school on over-reach got it right. Justice Barrett on her own said "you didn't need to go there guys—Occam gives a smoother shave." Justice Sotomayor, Justice Kagan and Justice Jackson finished the job: 'Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President."
Two geeky points.
The majority mal-identifies the provenance of 18 U. S. C. §2383. That is the part of the 1948 recodification of federal criminal statutes. Specifically, 18 U.S.C. § 2383 recodified section 4 of the previous Sedition Act of 1918 (40 Stat. 553). The Sedition Act of 1918 was an amendment to the Espionage Act of 1917 passed during World War I. Wrong monkey with the wrong organ grinder.
For guys into history and tradition, they might have picked up where the direct fallout from the Civil War settled into the dust. Act of June 6, 1898, ch. 389, 30 Stat. 432. The specific provision removing the disability is found in section 6 of the act, which states:
"That the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed."
This provision can be found on page 432 of volume 30 of the United States Statutes at Large (abbreviated as "30 Stat. 432").
Congress left Section 3 implementation slumber in the over-optimistic hope that it would no longer be needed in the future. But no one suggests that anyone was flogging the idea that it would no longer possibly be needed. They were right to leave Sleeping Beauty to her slumbers but now might be a good time for Congress to bestow a kiss.
So where it says the disability can be removed by a 2/3 vote of Congress - has this been nullified now? Or somehow Presidents are excluded from needed Congress to remove their disability according to the five men who love being Kings and making new law?
True to form, the extremist wing of a discredited Court gratuitously reaches for opportunity to impose views unanchored in law, precedent, or present need. It qualifies as self-indulgent overreach of patent bias, not serious jurisprudence. If their express intent were to devolve from discredited to dismissible, they could hardly do more.
Missing here is that this seemingly didn't just apply to the Presidency, but to all Federal positions including apparently Congress... who are voted in individually in their states, not nationally.
Excellent post, Chris. Thank you.
Chris, please correct me if I'm wrong about this, but isn't this the first time the 14th was used to attempt to keep
a presidential candidate off a
state ballot? If so and it's
in fact, as SCOTUS states, a
Congressional responsibility to enforce the amendment,
then perhaps the amendment
needs an update?
Barrett’s opinion boils down to: I agree with my sisters but they’re not being ladylike.
Now for a question—why did her opinion precede Sotomayor’s, where SS had seniority? It lends credence to the theory that it started as a dissent (normally appearing after concurrences) and got reined in.
"That was easy."
-SCOTUS