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David Lat's avatar

I'll kick things off with some additional observations that I didn't want to clutter my original post with:

1. Justice Barrett would not have addressed "the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced." So she joined Parts I and II–B of the Court’s opinion, but not the rest.

She could simply have stated that she joined only those Parts, but she went a bit further:

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

Was her reference to "amplify[ing] disagreement with stridency" a dig at the liberals' concurrence?

2. In their concurrence, the liberal justices (unsurprisingly) expressed concern about the holding that Section 3 isn't self-executing:

"All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) 'are self-executing,' meaning that they do not depend on legislation. Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3."

I do think it's a fair characterization to say that the majority has created "a special rule" for Section 3. So critics of today's ruling might argue that it's a little "Bush v. Gore"-ish, in terms of "here's how we want this case to come out, but don't extend its logic into other areas of law."

3. Finally, for the Con Law nerds among you who have been viewing this case through the lens of Griffin's Case, it seems to me that the Court just made that opinion—which wasn't a precedent of the Supreme Court, since it was written by Chief Justice Salmon Chase sitting as a circuit judge—a SCOTUS precedent.

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David Lat's avatar

The liberals' concurrence would have left open the possibility of "judicial enforcement of [Section 3], such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score."

In terms of its potential practical complications, allowing judicial enforcement in this manner—which is what Griffin's Case was so afraid of—could get very, very messy.

As Trump lawyer Jonathan Mitchell argued before the Court, it could raise the specter of lawsuits by parties who were adversely affected by executive action taken by the Trump Administration after January 6. These parties would argue that the Administration's actions were invalid because, after January 6, Trump wasn't entitled to hold office because he had engaged in insurrection.

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