The Section 3 disqualification case provided the Supreme Court with a chance to engage in true constitutional statesmanship. The five justices in the majority ... didn't.
Speaking of the lack of judicial statesmanship, in the insurrection case of Trump v. United States, the Court should have denied the petition for certiorari filed by the Special Counsel in order to let the excellent and comprehensive discussion of the issue by the D.C. Circuit Court remain the final word on Trump's claim of absolute and total immunity. The Court further de-legitimized itself by granting certiorari when everyone knows the Court will not agree with Trump that he was elected as the invincible king. The grant of certiorari was a political act to aid Trump in delaying the criminal trial and jury verdict until after the election.
" For reasons that are not yet apparent, and may never be, it failed."
I think the reasons are apparent. Alito and Thomas are convinced of their own righteousness and don't feel a need to back off to preserve the credibility of the institution. They have the power, lifetime tenure, and certainty of their own rightness, so why compromise.
Another reader here joining the chorus of people whose lost faith in the Court was “vindicated” (is that a thing?) by the Section 3 decision. Look no further than the Chief Justice, Mr. Institutionalist (and purportedly a savvy political actor), joining the majority. I keep coming back to Bush v. Gore — if the Republicans on that Court devolved into hacks in a case where the political significance was obvious, surely we can’t expect any better from the current Court.
I curious about the need for enabling legislation in order to use the amendment. Was the amendment not used at the time of passage to deny Confederate-aligned persons from holding office? Plain language reading of the text seems to support the idea it is self-actuating. At least to me. What historical evidence is there to shed light on this point?
Given Gorsuch's opinion in Hassan v. Colorado, in which a candidate for the presidency could not affirm that he was a "natural-born" US citizen as required by Colorado, couldn't states now simply ask candidates to affirm that they had not violated Section 3 of the 14th Amendment by participating in an insurrection? Trump would of course lie and swear to that, and then couldn't challenges to his candidacy be brought on grounds of Constitutional ineligibility, as they were for Hassan?
Steve: A bit off topic but, I think, germane to pending Trump trials: the so-called public "right" to a speedy trial. As I recall you mentioned this in passing in a recent "One First" as political rather than legal. Would appreciate more detail on its derivation if, in fact, it does formally exist. Thanks.
Self-inflicted wound. Soon: Prof. Vladeck optimistically appeals to respecting the Court and not lashing out too much against them to do things such as expanding the Court, which would lose respect for the integrity of the Court, which will eventually show some.
It isn't the competence of Judges to make political judgements.
As you grant, as you must, this is a political decision without constitutional foundation- states can't do what they do all the time, as Colorado recently did when it barred a foreign born candidate from the presidential ballot using its Article II powers in compliance with Constitutional qualifications - its justification rests entirely on its political wisdom.
Well, it was not wise at all. The Court has exposed the country to a potential catastrophe compared to which the possible disruption before which it quailed shrinks to insignificance. It owed us a decision we, the people, could understand, respect, and accept. Disqualification would have been just that, there is polling indicating this, e.g. ABC/Ipsos showing approval at 56%. I submit that the logic of disqualification for such a dangerous offense is universally understood. It is the same logic that impelled MLB to ban Pete Rose for gambling in 1989, to protect the game. Rose was admired and even beloved, yet that decision was understood, respected and accepted.
What the Court has done, considering it's own position, is to expose itself to either a reign of terror from Trump (they could ask Mike Pence about that)or to a greatly energized campaign to remake it if Biden is reelected, fortunately the most probable outcome. It will not have the credibility, now, to fend it off.
So, bad on the law, and bad on the politics. So events will show, I must conclude.
I’m one of those referred to who believes this court is irretrievably politicized and corrupt.mi don’t believe this was even in the same universe as a principled decision This was a completely political decision and the reason the 5 hacks enlarged their decision was to cover their main purpose - to ease Trumps passage. Mr Vladeck is correct that this was a political decision but it wasn’t a “high constitutional purpose”. It was about as low as you can get. This began as one of the worst decisions in Supreme Court history and then became worse and more dangerous. What does a diverse constitutional democracy do to counter, to defend itself against, significant non constitutional non democratic forces? We have dodged this issue since Trump emerges. The 14th amendment was the only part of our constitutional structure that allowed the prospect of an out. It was intended to be self executing and intended to allow state level decisions because the drafters realized that in a moment of extreme danger - where we are right now - the very existence of the non constitutional forces could easily prevent any standard defense. (By the way why is the Court so happy Wirth a “patchwork” of decisions when it comes to women’s lives, but not when we’re thinking about an insurrection which has occurred twice in the country’s history) The Court knows very well that a congressional level solution is impossible. (Think about the Brown decision - the country needed a way out, there was no standard decision possible. Arguably the 14th amendment saved us) So what the Court has done nowis take away forever the capacity of our democracy to defend itself against insurrection and then doubled down to make what they did so merky that any mildly competent lawyer could tie any case in knots. Finally to finish the rant the three “liberal” judges - in this case I use “liberal” as believers in constitutional democracy - betrayed us. In Plessey at least John Harlan dissented. In this case no one did. Do none if the learned grave “sound” legal thinkers believe these are perilous times? Apparently not. We wil regret this decision soon - probably in November.
I’m a retired FTC lawyer and neither a recent law school nor graduate a law professor so I might be off. When I was in law school in the late 1970s, I think I would have been taught that the 9-0 statement that the states can’t enforce Section 3 as to federal offices was the holding and the rest was dictum. I guess the law has changed since then.
The “Congress shall have power to enforce….” boilerplate language is found in:
13th amendment:
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
14th Amendment:
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
15th Amendment:
Section 2.
The Congress shall have power to enforce this article by appropriate legislation.
19th Amendment (women’s suffrage)
23rd Amendment (DC electors)
24th Amendment (forbidding poll tax)
26th Amendment (voting at age 18)
The majority seem to have taken boilerplate language allowing Congress to pass necessary legislation and turned it into a *requirement* that Congress do so—without which the article is unenforceable. Do judges now need to hunt for some “enabling legislation” in each of these amendments in order for them to actually have force?
It would be troubling indeed if some future SC majority used the same rationale to shovel other articles of other amendments off to Congressional enforcement, lacking which they also might be declared unenforceable. This could potentially give future Supreme Courts the ability to challenge the clear wording of other amendments (e.g. due process in the 14th Amendment) by challenging the wording of--or absence of-- enforcing legislation.
Is this the logic of the second part of the 5-vote majority? If so, this decision has the potential to revolutionize judicial interpretation of other parts of the Constitution. Or am I suffering from Amateur Lawyer's Hyperlogical (?) Derangement Syndrome?
This is my visit to this substack. It seems interesting, but I don't have the time nor inclination to read anything that agrees that scotus is okay when ignoring the Constitution, which in fact has a 14.3 in it that shouldn't be blown by and ignored when a reason for its being is raised after some 150 years of sensible-enough potuses. How much more of the Constitution has previous Scotuses simply denied? It seems to me that an Amendment is needed in order to simply erase a few lines of the sacred text, and that is not a scotus concern. Anything else is a lame excuse. Go Jamie Raskin!
I’m not sure the nation would benefit from the Court as currently constituted having more credibility. They are on the cusp of taking a chainsaw to the “administrative state.” They have lit reproductive freedom on fire and are turning the country into a free fire zone. The last thing I want from this crew is “credibility.”
You are completely right. This group woukd have been right at home with Plessey and woukd have voted against Brown with the three ‘liberals’ concurring. Kiss goodby to the 14th. Amendment
Any chance that the portion of the majority decision regarding federal offices other than the president could be read as dicta? It certainly wasn't necessary to the disposition of the case ...
If states can't disqualify any candidate for federal office on the grounds that we need uniformity, wouldn't that lead to the need for uniform standards for all federal elections? Colorado has universal mail ballots. Should we be required to have the same ID requirements and signature rejection rate as North Carolina?
Speaking of the lack of judicial statesmanship, in the insurrection case of Trump v. United States, the Court should have denied the petition for certiorari filed by the Special Counsel in order to let the excellent and comprehensive discussion of the issue by the D.C. Circuit Court remain the final word on Trump's claim of absolute and total immunity. The Court further de-legitimized itself by granting certiorari when everyone knows the Court will not agree with Trump that he was elected as the invincible king. The grant of certiorari was a political act to aid Trump in delaying the criminal trial and jury verdict until after the election.
" For reasons that are not yet apparent, and may never be, it failed."
I think the reasons are apparent. Alito and Thomas are convinced of their own righteousness and don't feel a need to back off to preserve the credibility of the institution. They have the power, lifetime tenure, and certainty of their own rightness, so why compromise.
Another reader here joining the chorus of people whose lost faith in the Court was “vindicated” (is that a thing?) by the Section 3 decision. Look no further than the Chief Justice, Mr. Institutionalist (and purportedly a savvy political actor), joining the majority. I keep coming back to Bush v. Gore — if the Republicans on that Court devolved into hacks in a case where the political significance was obvious, surely we can’t expect any better from the current Court.
I curious about the need for enabling legislation in order to use the amendment. Was the amendment not used at the time of passage to deny Confederate-aligned persons from holding office? Plain language reading of the text seems to support the idea it is self-actuating. At least to me. What historical evidence is there to shed light on this point?
Given Gorsuch's opinion in Hassan v. Colorado, in which a candidate for the presidency could not affirm that he was a "natural-born" US citizen as required by Colorado, couldn't states now simply ask candidates to affirm that they had not violated Section 3 of the 14th Amendment by participating in an insurrection? Trump would of course lie and swear to that, and then couldn't challenges to his candidacy be brought on grounds of Constitutional ineligibility, as they were for Hassan?
Steve: A bit off topic but, I think, germane to pending Trump trials: the so-called public "right" to a speedy trial. As I recall you mentioned this in passing in a recent "One First" as political rather than legal. Would appreciate more detail on its derivation if, in fact, it does formally exist. Thanks.
Self-inflicted wound. Soon: Prof. Vladeck optimistically appeals to respecting the Court and not lashing out too much against them to do things such as expanding the Court, which would lose respect for the integrity of the Court, which will eventually show some.
It isn't the competence of Judges to make political judgements.
As you grant, as you must, this is a political decision without constitutional foundation- states can't do what they do all the time, as Colorado recently did when it barred a foreign born candidate from the presidential ballot using its Article II powers in compliance with Constitutional qualifications - its justification rests entirely on its political wisdom.
Well, it was not wise at all. The Court has exposed the country to a potential catastrophe compared to which the possible disruption before which it quailed shrinks to insignificance. It owed us a decision we, the people, could understand, respect, and accept. Disqualification would have been just that, there is polling indicating this, e.g. ABC/Ipsos showing approval at 56%. I submit that the logic of disqualification for such a dangerous offense is universally understood. It is the same logic that impelled MLB to ban Pete Rose for gambling in 1989, to protect the game. Rose was admired and even beloved, yet that decision was understood, respected and accepted.
What the Court has done, considering it's own position, is to expose itself to either a reign of terror from Trump (they could ask Mike Pence about that)or to a greatly energized campaign to remake it if Biden is reelected, fortunately the most probable outcome. It will not have the credibility, now, to fend it off.
So, bad on the law, and bad on the politics. So events will show, I must conclude.
I’m one of those referred to who believes this court is irretrievably politicized and corrupt.mi don’t believe this was even in the same universe as a principled decision This was a completely political decision and the reason the 5 hacks enlarged their decision was to cover their main purpose - to ease Trumps passage. Mr Vladeck is correct that this was a political decision but it wasn’t a “high constitutional purpose”. It was about as low as you can get. This began as one of the worst decisions in Supreme Court history and then became worse and more dangerous. What does a diverse constitutional democracy do to counter, to defend itself against, significant non constitutional non democratic forces? We have dodged this issue since Trump emerges. The 14th amendment was the only part of our constitutional structure that allowed the prospect of an out. It was intended to be self executing and intended to allow state level decisions because the drafters realized that in a moment of extreme danger - where we are right now - the very existence of the non constitutional forces could easily prevent any standard defense. (By the way why is the Court so happy Wirth a “patchwork” of decisions when it comes to women’s lives, but not when we’re thinking about an insurrection which has occurred twice in the country’s history) The Court knows very well that a congressional level solution is impossible. (Think about the Brown decision - the country needed a way out, there was no standard decision possible. Arguably the 14th amendment saved us) So what the Court has done nowis take away forever the capacity of our democracy to defend itself against insurrection and then doubled down to make what they did so merky that any mildly competent lawyer could tie any case in knots. Finally to finish the rant the three “liberal” judges - in this case I use “liberal” as believers in constitutional democracy - betrayed us. In Plessey at least John Harlan dissented. In this case no one did. Do none if the learned grave “sound” legal thinkers believe these are perilous times? Apparently not. We wil regret this decision soon - probably in November.
I’m a retired FTC lawyer and neither a recent law school nor graduate a law professor so I might be off. When I was in law school in the late 1970s, I think I would have been taught that the 9-0 statement that the states can’t enforce Section 3 as to federal offices was the holding and the rest was dictum. I guess the law has changed since then.
The “Congress shall have power to enforce….” boilerplate language is found in:
13th amendment:
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
14th Amendment:
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
15th Amendment:
Section 2.
The Congress shall have power to enforce this article by appropriate legislation.
19th Amendment (women’s suffrage)
23rd Amendment (DC electors)
24th Amendment (forbidding poll tax)
26th Amendment (voting at age 18)
The majority seem to have taken boilerplate language allowing Congress to pass necessary legislation and turned it into a *requirement* that Congress do so—without which the article is unenforceable. Do judges now need to hunt for some “enabling legislation” in each of these amendments in order for them to actually have force?
It would be troubling indeed if some future SC majority used the same rationale to shovel other articles of other amendments off to Congressional enforcement, lacking which they also might be declared unenforceable. This could potentially give future Supreme Courts the ability to challenge the clear wording of other amendments (e.g. due process in the 14th Amendment) by challenging the wording of--or absence of-- enforcing legislation.
Is this the logic of the second part of the 5-vote majority? If so, this decision has the potential to revolutionize judicial interpretation of other parts of the Constitution. Or am I suffering from Amateur Lawyer's Hyperlogical (?) Derangement Syndrome?
This is my visit to this substack. It seems interesting, but I don't have the time nor inclination to read anything that agrees that scotus is okay when ignoring the Constitution, which in fact has a 14.3 in it that shouldn't be blown by and ignored when a reason for its being is raised after some 150 years of sensible-enough potuses. How much more of the Constitution has previous Scotuses simply denied? It seems to me that an Amendment is needed in order to simply erase a few lines of the sacred text, and that is not a scotus concern. Anything else is a lame excuse. Go Jamie Raskin!
I’m not sure the nation would benefit from the Court as currently constituted having more credibility. They are on the cusp of taking a chainsaw to the “administrative state.” They have lit reproductive freedom on fire and are turning the country into a free fire zone. The last thing I want from this crew is “credibility.”
You are completely right. This group woukd have been right at home with Plessey and woukd have voted against Brown with the three ‘liberals’ concurring. Kiss goodby to the 14th. Amendment
Any chance that the portion of the majority decision regarding federal offices other than the president could be read as dicta? It certainly wasn't necessary to the disposition of the case ...
If states can't disqualify any candidate for federal office on the grounds that we need uniformity, wouldn't that lead to the need for uniform standards for all federal elections? Colorado has universal mail ballots. Should we be required to have the same ID requirements and signature rejection rate as North Carolina?
That line from The Queen is one of my favorites.