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.
Actually, scratch that comment about Griffin's case. Here's what Adam Unikowsky pointed out:
"Contrary to some initial reporting, the Supreme Court did not endorse the holding in Griffin’s Case, as Trump had urged. Indeed, the Supreme Court’s decision suggests that Griffin’s Case was wrongly decided. In Griffin’s Case, Chief Justice Chase, acting as a lower-court judge, concluded that Section 3 was completely inert until Congress took action, such that it could not be applied to the state-court judge who was the insurrectionist in that case. The Supreme Court, by contrast, held that states could apply Section 3 to state-court officials, implying that Section 3 is self-executing as applied to state-court judges like the judge in Griffin’s Case. The Supreme Court ruled in Trump’s favor on the ground that a state court could not disqualify a federal candidate under Section 3 because the Fourteenth Amendment didn’t 'affirmatively delegate' the authority to do so."
But one can see why many viewed Trump v. Anderson as adopting Griffin's Case, in which Chief Justice Chase wrote "that legislation by congress is necessary to give effect to the prohibition" of Section 3.
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.
Here's an interesting tidbit pointed out by Mark Joseph Stern on Twitter:
"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.
And if you do a control-F search for 'SOTOMAYOR, J., concurring in part and dissenting in part,' it highlights that same line.
It looks like the liberals' opinion was originally styled as a partial dissent written by Justice Sotomayor, but got changed to a concurrence in the judgment authored jointly by all three liberals."
I think maybe you could give yourself half of a point for saying "authored by Roberts." It's per curiam, but he probably did write it!
Liberals like me don't like it when the court seems to depart from textualist/originalist principles when it suits them, while claiming they are the sole acceptable method for interpreting laws and the constitution in other circumstances. I would rather the court had just been honest, "We don't think stepping into the middle of this divisive situation is a good idea for us or the country." But I would also prefer less willingness to step into other divisive issues - but there are some they are eager to decide.
Giving the majority its due, I think some of the direction this went was intended to prevent things like 1) a wave of red states from trying to strike Biden from the ballot, 2) Congress from using Section 3 as a basis not to certify electoral votes for Trump or Biden (depending on who controls Congress).
The majority opinion does seem to say that if Trump had been charged with (he wasn't) and convicted of violating Section 2383 incitement of insurrection, holding him ineligible under Section 3 could have been appropriate. But their calling out of that statute suggests that in the unlikely event that he is convicted in Jack Smith's federal case, that would not preclude his taking office.
Ha! I actually think it's quite likely he's the author (based on its very measured tone, besides the nature and stakes of the case).
I agree with your second paragraph—I wouldn't want either the red or the blue team trying to weaponize this provision against the other side, and hopefully this opinion closes that door.
Re: "We don't think stepping into the middle of this divisive situation is a good idea for us or the country"—are you saying you would have preferred them to invoke the "political question" doctrine? Or just made the same argument as they did, but in a different way?
I have issues with some past applications of political question doctrine from this court. But it or something like it might have been a better route to go here. Sometimes the need to justify a decision that is going to be made anyway within a particular interpretive framework requires perverting the framework. I'm not saying that a "we do whatever we feel like, no holds barred" approach is a good idea either, but I don't necessarily like the what the current balance seems to be.
I'd like a world where, yes, we can look at text and original public meaning and give those great interpretive weight, but also admit that other factors can also (openly and with respect) be given weight.
Barrett and the liberal three clearly see it as dictum, but there are five votes saying it's not, none of which seem likely to change in the next 10 months.
David, I agree with you that "the language in the per curiam opinion is a bit elliptical" (though you are generous). I think that strengthens the argument that it's dictum. I also agree that the five male Justices are trying to dictate to Congress on how to act. Where we may differ is that I would be very surprised if the Court installs Trump in wake of Congressional action on the basis of this opinion. By that, I mean they will say this opinion is precedent. But they can (and do) say anything they want to justify their actions, whether it makes sense. Strict Scrutiny has a powerful take down. https://crooked.com/podcast/scotus-restores-trump-to-the-colorado-ballot-unanimously-kind-of/.
I agree that saying that Colorado can't remove a federal candidate is defensible as a matter of policy (and I'm willing to let the Court stretch precedents to get there), the rest of the PC opinion is ridiculous and the fact that no one was willing openly to be the author is perhaps proof of that. They are apparently heeding Justice Scalia in Obergefell where he said "If . . . I ever joined an opinion for the Court . . . I would hide my head in a bag." Petty big bag because it fits five!
Interesting point! And perhaps some members of Congress will try to "enforce" Section 3 in by rejecting Trump electoral votes.
This language in the per curiam opinion is a bit elliptical, but I wonder if it could be read as trying to argue that the broad version of the holding isn't mere dicta:
"So far as we can tell, [the concurring justices] 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."
Section 5 isn’t what everyone thinks it is. The distinction lies in how the enforcement of the Fourteenth Amendment is conceptualized and the role of different branches of the government in this process:
1. Judicial Enforcement: The courts, particularly the Supreme Court, play a crucial role in enforcing the Fourteenth Amendment. Many of its provisions, especially those in Section 1 (like the Equal Protection and Due Process Clauses), are applied and interpreted in court cases. Individuals can bring lawsuits alleging violations of their rights under the Fourteenth Amendment, and the courts can enforce these rights by ruling against unconstitutional state actions. This judicial enforcement mechanism does not rely on Congress to take action but instead depends on the judiciary interpreting and applying the Constitution to specific cases.
2. Legislative Enforcement (Congressional Enforcement): Section 5 of the Fourteenth Amendment explicitly gives Congress the power to enforce the amendment’s provisions through legislation. This means Congress can pass laws that define, extend, or clarify the rights guaranteed under the amendment and provide mechanisms for their protection. This role is not exclusive to Congress enforcing the amendment; rather, it empowers Congress to support and expand the amendment’s application through laws. An example is the Civil Rights Act of 1964, which used the power granted by Section 5 to prohibit discrimination on the basis of race, color, religion, sex, or national origin.
3. Executive Enforcement: The executive branch, through various federal agencies, also plays a role in enforcing the Fourteenth Amendment, especially as it relates to laws passed under Section 5. For example, the Department of Justice can bring lawsuits against states or public entities that violate federally enacted civil rights laws.
In summary, while only Congress has the power under Section 5 to enact legislation to enforce the Fourteenth Amendment, the enforcement of the amendment is a broader concept that includes judicial interpretation and application of its provisions, as well as executive actions to comply with and enforce laws passed under its authority.
It's a real shame that all nine justices could not speak entirely with one voice in this politically fraught case--particularly when their credibility and "legitimacy" are under attack once more for taking the immunity case. The five justices who joined the PC opinion in full must have calculated that trying to put this issue completely to rest with respect to Trump and the 2024 election was worth the price of creating distance (and obvious hard feelings) between themselves and the other four justices.
I agree with Sotomayor et al that this effort is as "inadequately supported" as it is "gratuitous." The PC's argument that section 3 can only be enforced federally through specific legislation enacted by Congress seems quite weak--anti-textual, illogical, and based only on a few snippets from section 3's legislative history. But I guess it was their best shot. Clearly none of the justices wanted to touch the issues of whether January 6 was an "insurrection" that Trump "incited," and there probably weren't five votes for the proposition that the presidency is not covered by section 3.
We'll see if the effort works. If Trump wins, the issue is bound to come up in a big way in connection with the congressional vote count. That will indeed be a very ugly scene. Hopefully, the five justices (and the rest of us) will get lucky and dodge this bullet if Trump loses the election.
Yes, interesting (but not surprising) that the justices didn't want to delve into the "insurrection" question.
I had entertained in my head the possibility that Justice Thomas or Justice Alito might write a "no insurrection/insurrectionist" concurrence, but I'm glad that they didn't.
Regarding their also taking the immunity case, I think I agree with commentators (like Rick Hasen) who have suggested that the justices are trying to promote their neutrality by ruling for Trump in one high-profile case and against him in another—and unanimously or nearly unanimously in both cases.
I hope you are right about the immunity case, but I’m not real confident. My biggest worry is that they will come up with some kind of mixed bag resolution that requires a remand instead of an affirmance.
The PC opinion puts structural arguments about federalism front and center. That made the dismissal of the Electors and Elections Clauses a bit striking: "But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power."
That response falls back on the original presumption, doesn't it? The Fourteenth Amendment is a restriction on state power but it has to be read in light of the background principle that states control the procedures of its elections, including for federal offices. There was more to say here, I think.
Two other surprises:
- Based on the concurring opinions, it seems that there was potential 9-0 opinion that federalism principles deny Colorado the power to disqualify Trump. I wonder how much the Court's power brokers may have lost by choosing to write a broader opinion that spawned concurrences.
- I expected at least one Justice to write about S3's application to the President of the United States. The textual arguments ("of"/"under" the United States) featured prominently in oral arguments.
My guess is that Roberts et al. would have loved a 9-0 opinion, but not at the expense of shutting the door entirely to this issue returning to the Court during this election cycle. But the four justices who concurred in the judgment weren't willing to go that far, so that's why things wound up the way they did.
Another clear explanation that even I can understand. Thank you.
I vote David Lat to be a referee in a Premier League football match. His incision would be a useful interpreter of the minutiae and precedents of the rules, and may also be able to influence the role of VAR on the game.
Perhaps he could next adjudicate on a matter of international law, as there are a number of international legal issues which may come to trump domestic US policy in the future.
I’m curious on your take on the Slate article by Mark Joseph Stern pointing out that the opinion metadata hadn’t been cleaned up, and the concurrence by the three liberal justices was originally framed and presented as a dissent. (I assume you have access in the event it is behind Slate’s paywall, but if not LMK).
In the latest episode of Divided Argument, Will Baude floated a horse-trading theory along the lines of what Mark Joseph Stern outlined, connecting it to what some observers viewed as a delay in granting cert in the immunity case. But his co-host Dan Epps pointed out in response that such explicit dealmaking is highly unusual—and frowned-upon at One First Street.
I thought it was a fascinating piece (link below), and I tend to agree with his descriptive analysis in terms of what was probably going on here:
"Kagan and Jackson were keeping their votes fluid in the hopes of striking a bargain to avert a gratuitously broad opinion effectively repealing the insurrection clause. This bargain may have been simple; the two justices might have joined with Barrett to seek a fifth vote for a narrow holding, presumably from Roberts. All the while, Sotomayor worked on the fallback option: a partial dissent chastising the majority’s overreach. When Kagan and Jackson realized they couldn’t nab a fifth vote for the narrow position, they teamed up with Sotomayor, making a few changes and signing their names as authors in a show of force and agreement within the progressive bloc."
I think his speculation about maybe some broader bargain, perhaps involving the immunity case, is possible (although I think less likely than the scenario outlined above).
It's a superficial opinion, but what else can you expect? If you want a sharp, deeply reasoned opinion, you need time, which the court did not have. And, to secure a majority, you need to be vague.
It is not a textual opinion, because it makes no sense if based solely on the text of the 14th amendment and section 3. Most provisions of the 14th amendment are self-enforcing; section 3 is not, according to this opinion. Why the difference? Because presidential elections are matters of national importance. Only Congress can provide the uniform rules.
So, it really is a public policy opinion. Presidential elections should be national and governed by uniform rules. I can understand that, but it certainly is inconsistent with this Court's other rulings (i.e., Dobbs, etc.). If you want to rest an opinion on public policy, just say so. Say out loud this policy overrides history, tradition, past practices, and so on. But this approach would not command a majority of a court devoted (so they say) to text, history and tradition.
In light of the Supreme Court’s ruling in Trump v. Anderson, which emphasizes Congress’s exclusive authority to enforce Section 3 of the Fourteenth Amendment, an argument can be made that the passage of the Fourteenth Amendment itself by Congress fulfills this requirement for legislative action. This is a significant consideration, especially when we compare it with other disqualification provisions within the Constitution that do not specify or require separate legislation for their enforcement mechanisms. For instance, the Constitution includes provisions for disqualifying elected officials upon impeachment and conviction for high crimes and misdemeanors, without detailing the enforcement mechanism beyond the impeachment process itself. Similarly, the natural-born citizen requirement for presidential eligibility is enforced without additional legislative detailing on enforcement mechanisms.
This perspective suggests that the Constitution inherently grants the judiciary the power to interpret and apply its provisions, including disqualification criteria, directly from its text. The judiciary’s role in interpreting the Constitution implies it possesses the authority to enforce disqualifications under the Fourteenth Amendment, acting within the broad mandate provided by its enactment. The historical practice of judicial interpretation and enforcement of constitutional provisions, even in the absence of detailed enforcement mechanisms, supports the argument that courts can enforce Section 3 disqualifications. This is consistent with the judiciary’s foundational role in safeguarding constitutional principles and ensuring that individuals who are constitutionally disqualified do not hold public office.
Thus, by enacting the Fourteenth Amendment, Congress has implicitly authorized the judiciary to enforce its provisions, including those related to disqualification for engaging in insurrection or rebellion. This approach underscores the judiciary’s capacity to uphold constitutional integrity and order through its interpretative authority, fulfilling the requirements outlined by Trump v. Anderson without necessitating further legislative action. This argument positions the enactment of the Fourteenth Amendment as a legislative act that, by its very nature, equips the judiciary with the authority to enforce its disqualifications, drawing a parallel with other constitutional provisions whose enforcement mechanisms are understood to be implicitly judicial rather than legislatively detailed.
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.
You can always count on Lat to slip in a Chase reference! :)
Actually, scratch that comment about Griffin's case. Here's what Adam Unikowsky pointed out:
"Contrary to some initial reporting, the Supreme Court did not endorse the holding in Griffin’s Case, as Trump had urged. Indeed, the Supreme Court’s decision suggests that Griffin’s Case was wrongly decided. In Griffin’s Case, Chief Justice Chase, acting as a lower-court judge, concluded that Section 3 was completely inert until Congress took action, such that it could not be applied to the state-court judge who was the insurrectionist in that case. The Supreme Court, by contrast, held that states could apply Section 3 to state-court officials, implying that Section 3 is self-executing as applied to state-court judges like the judge in Griffin’s Case. The Supreme Court ruled in Trump’s favor on the ground that a state court could not disqualify a federal candidate under Section 3 because the Fourteenth Amendment didn’t 'affirmatively delegate' the authority to do so."
But one can see why many viewed Trump v. Anderson as adopting Griffin's Case, in which Chief Justice Chase wrote "that legislation by congress is necessary to give effect to the prohibition" of Section 3.
https://adamunikowsky.substack.com/p/revenge-of-the-statesmen
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.
Here's an interesting tidbit pointed out by Mark Joseph Stern on Twitter:
"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.
And if you do a control-F search for 'SOTOMAYOR, J., concurring in part and dissenting in part,' it highlights that same line.
It looks like the liberals' opinion was originally styled as a partial dissent written by Justice Sotomayor, but got changed to a concurrence in the judgment authored jointly by all three liberals."
https://twitter.com/mjs_DC/status/1764720374107767190
I think maybe you could give yourself half of a point for saying "authored by Roberts." It's per curiam, but he probably did write it!
Liberals like me don't like it when the court seems to depart from textualist/originalist principles when it suits them, while claiming they are the sole acceptable method for interpreting laws and the constitution in other circumstances. I would rather the court had just been honest, "We don't think stepping into the middle of this divisive situation is a good idea for us or the country." But I would also prefer less willingness to step into other divisive issues - but there are some they are eager to decide.
Giving the majority its due, I think some of the direction this went was intended to prevent things like 1) a wave of red states from trying to strike Biden from the ballot, 2) Congress from using Section 3 as a basis not to certify electoral votes for Trump or Biden (depending on who controls Congress).
The majority opinion does seem to say that if Trump had been charged with (he wasn't) and convicted of violating Section 2383 incitement of insurrection, holding him ineligible under Section 3 could have been appropriate. But their calling out of that statute suggests that in the unlikely event that he is convicted in Jack Smith's federal case, that would not preclude his taking office.
Ha! I actually think it's quite likely he's the author (based on its very measured tone, besides the nature and stakes of the case).
I agree with your second paragraph—I wouldn't want either the red or the blue team trying to weaponize this provision against the other side, and hopefully this opinion closes that door.
Re: "We don't think stepping into the middle of this divisive situation is a good idea for us or the country"—are you saying you would have preferred them to invoke the "political question" doctrine? Or just made the same argument as they did, but in a different way?
I have issues with some past applications of political question doctrine from this court. But it or something like it might have been a better route to go here. Sometimes the need to justify a decision that is going to be made anyway within a particular interpretive framework requires perverting the framework. I'm not saying that a "we do whatever we feel like, no holds barred" approach is a good idea either, but I don't necessarily like the what the current balance seems to be.
I'd like a world where, yes, we can look at text and original public meaning and give those great interpretive weight, but also admit that other factors can also (openly and with respect) be given weight.
And I'd like a pony.
Unsure if PC opinion actually forecloses Congress from refusing to count Trump electoral votes:
—It seems to be dictum.
—The Constitution gives Congress right to count votes. So arguably a political question if Congress refuses to count votes.
—Legal Realism check: Roberts, Kavanaugh, Gorsuch, and Barrett want four more years of Trump?
Barrett and the liberal three clearly see it as dictum, but there are five votes saying it's not, none of which seem likely to change in the next 10 months.
I agree with you that it ultimately wouldn't fly. But I do wonder if some members of Congress might try.
If Trump is poised to win, you better believe some of the Democrats (like the "Squad") are going to try.
David, I agree with you that "the language in the per curiam opinion is a bit elliptical" (though you are generous). I think that strengthens the argument that it's dictum. I also agree that the five male Justices are trying to dictate to Congress on how to act. Where we may differ is that I would be very surprised if the Court installs Trump in wake of Congressional action on the basis of this opinion. By that, I mean they will say this opinion is precedent. But they can (and do) say anything they want to justify their actions, whether it makes sense. Strict Scrutiny has a powerful take down. https://crooked.com/podcast/scotus-restores-trump-to-the-colorado-ballot-unanimously-kind-of/.
I agree that saying that Colorado can't remove a federal candidate is defensible as a matter of policy (and I'm willing to let the Court stretch precedents to get there), the rest of the PC opinion is ridiculous and the fact that no one was willing openly to be the author is perhaps proof of that. They are apparently heeding Justice Scalia in Obergefell where he said "If . . . I ever joined an opinion for the Court . . . I would hide my head in a bag." Petty big bag because it fits five!
Interesting point! And perhaps some members of Congress will try to "enforce" Section 3 in by rejecting Trump electoral votes.
This language in the per curiam opinion is a bit elliptical, but I wonder if it could be read as trying to argue that the broad version of the holding isn't mere dicta:
"So far as we can tell, [the concurring justices] 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."
The court totally passed the buck.
Section 5 isn’t what everyone thinks it is. The distinction lies in how the enforcement of the Fourteenth Amendment is conceptualized and the role of different branches of the government in this process:
1. Judicial Enforcement: The courts, particularly the Supreme Court, play a crucial role in enforcing the Fourteenth Amendment. Many of its provisions, especially those in Section 1 (like the Equal Protection and Due Process Clauses), are applied and interpreted in court cases. Individuals can bring lawsuits alleging violations of their rights under the Fourteenth Amendment, and the courts can enforce these rights by ruling against unconstitutional state actions. This judicial enforcement mechanism does not rely on Congress to take action but instead depends on the judiciary interpreting and applying the Constitution to specific cases.
2. Legislative Enforcement (Congressional Enforcement): Section 5 of the Fourteenth Amendment explicitly gives Congress the power to enforce the amendment’s provisions through legislation. This means Congress can pass laws that define, extend, or clarify the rights guaranteed under the amendment and provide mechanisms for their protection. This role is not exclusive to Congress enforcing the amendment; rather, it empowers Congress to support and expand the amendment’s application through laws. An example is the Civil Rights Act of 1964, which used the power granted by Section 5 to prohibit discrimination on the basis of race, color, religion, sex, or national origin.
3. Executive Enforcement: The executive branch, through various federal agencies, also plays a role in enforcing the Fourteenth Amendment, especially as it relates to laws passed under Section 5. For example, the Department of Justice can bring lawsuits against states or public entities that violate federally enacted civil rights laws.
In summary, while only Congress has the power under Section 5 to enact legislation to enforce the Fourteenth Amendment, the enforcement of the amendment is a broader concept that includes judicial interpretation and application of its provisions, as well as executive actions to comply with and enforce laws passed under its authority.
It's a real shame that all nine justices could not speak entirely with one voice in this politically fraught case--particularly when their credibility and "legitimacy" are under attack once more for taking the immunity case. The five justices who joined the PC opinion in full must have calculated that trying to put this issue completely to rest with respect to Trump and the 2024 election was worth the price of creating distance (and obvious hard feelings) between themselves and the other four justices.
I agree with Sotomayor et al that this effort is as "inadequately supported" as it is "gratuitous." The PC's argument that section 3 can only be enforced federally through specific legislation enacted by Congress seems quite weak--anti-textual, illogical, and based only on a few snippets from section 3's legislative history. But I guess it was their best shot. Clearly none of the justices wanted to touch the issues of whether January 6 was an "insurrection" that Trump "incited," and there probably weren't five votes for the proposition that the presidency is not covered by section 3.
We'll see if the effort works. If Trump wins, the issue is bound to come up in a big way in connection with the congressional vote count. That will indeed be a very ugly scene. Hopefully, the five justices (and the rest of us) will get lucky and dodge this bullet if Trump loses the election.
Yes, interesting (but not surprising) that the justices didn't want to delve into the "insurrection" question.
I had entertained in my head the possibility that Justice Thomas or Justice Alito might write a "no insurrection/insurrectionist" concurrence, but I'm glad that they didn't.
Regarding their also taking the immunity case, I think I agree with commentators (like Rick Hasen) who have suggested that the justices are trying to promote their neutrality by ruling for Trump in one high-profile case and against him in another—and unanimously or nearly unanimously in both cases.
I hope you are right about the immunity case, but I’m not real confident. My biggest worry is that they will come up with some kind of mixed bag resolution that requires a remand instead of an affirmance.
It’s a shame they are forced to play these games.
The PC opinion puts structural arguments about federalism front and center. That made the dismissal of the Electors and Elections Clauses a bit striking: "But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power."
That response falls back on the original presumption, doesn't it? The Fourteenth Amendment is a restriction on state power but it has to be read in light of the background principle that states control the procedures of its elections, including for federal offices. There was more to say here, I think.
Two other surprises:
- Based on the concurring opinions, it seems that there was potential 9-0 opinion that federalism principles deny Colorado the power to disqualify Trump. I wonder how much the Court's power brokers may have lost by choosing to write a broader opinion that spawned concurrences.
- I expected at least one Justice to write about S3's application to the President of the United States. The textual arguments ("of"/"under" the United States) featured prominently in oral arguments.
My guess is that Roberts et al. would have loved a 9-0 opinion, but not at the expense of shutting the door entirely to this issue returning to the Court during this election cycle. But the four justices who concurred in the judgment weren't willing to go that far, so that's why things wound up the way they did.
Another clear explanation that even I can understand. Thank you.
I vote David Lat to be a referee in a Premier League football match. His incision would be a useful interpreter of the minutiae and precedents of the rules, and may also be able to influence the role of VAR on the game.
Perhaps he could next adjudicate on a matter of international law, as there are a number of international legal issues which may come to trump domestic US policy in the future.
Thank you for the generous praise! But you have picked two areas, football and international law, where I am woefully deficient!
I’m curious on your take on the Slate article by Mark Joseph Stern pointing out that the opinion metadata hadn’t been cleaned up, and the concurrence by the three liberal justices was originally framed and presented as a dissent. (I assume you have access in the event it is behind Slate’s paywall, but if not LMK).
In the latest episode of Divided Argument, Will Baude floated a horse-trading theory along the lines of what Mark Joseph Stern outlined, connecting it to what some observers viewed as a delay in granting cert in the immunity case. But his co-host Dan Epps pointed out in response that such explicit dealmaking is highly unusual—and frowned-upon at One First Street.
https://www.dividedargument.com/episodes/political-hacks-pretending-to-be-lawyers
Yep, I listened to that. I tend to believe the horse trading happens not infrequently.
I thought it was a fascinating piece (link below), and I tend to agree with his descriptive analysis in terms of what was probably going on here:
"Kagan and Jackson were keeping their votes fluid in the hopes of striking a bargain to avert a gratuitously broad opinion effectively repealing the insurrection clause. This bargain may have been simple; the two justices might have joined with Barrett to seek a fifth vote for a narrow holding, presumably from Roberts. All the while, Sotomayor worked on the fallback option: a partial dissent chastising the majority’s overreach. When Kagan and Jackson realized they couldn’t nab a fifth vote for the narrow position, they teamed up with Sotomayor, making a few changes and signing their names as authors in a show of force and agreement within the progressive bloc."
I think his speculation about maybe some broader bargain, perhaps involving the immunity case, is possible (although I think less likely than the scenario outlined above).
https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html
It's a superficial opinion, but what else can you expect? If you want a sharp, deeply reasoned opinion, you need time, which the court did not have. And, to secure a majority, you need to be vague.
It is not a textual opinion, because it makes no sense if based solely on the text of the 14th amendment and section 3. Most provisions of the 14th amendment are self-enforcing; section 3 is not, according to this opinion. Why the difference? Because presidential elections are matters of national importance. Only Congress can provide the uniform rules.
So, it really is a public policy opinion. Presidential elections should be national and governed by uniform rules. I can understand that, but it certainly is inconsistent with this Court's other rulings (i.e., Dobbs, etc.). If you want to rest an opinion on public policy, just say so. Say out loud this policy overrides history, tradition, past practices, and so on. But this approach would not command a majority of a court devoted (so they say) to text, history and tradition.
Ok one more argument point to make:
In light of the Supreme Court’s ruling in Trump v. Anderson, which emphasizes Congress’s exclusive authority to enforce Section 3 of the Fourteenth Amendment, an argument can be made that the passage of the Fourteenth Amendment itself by Congress fulfills this requirement for legislative action. This is a significant consideration, especially when we compare it with other disqualification provisions within the Constitution that do not specify or require separate legislation for their enforcement mechanisms. For instance, the Constitution includes provisions for disqualifying elected officials upon impeachment and conviction for high crimes and misdemeanors, without detailing the enforcement mechanism beyond the impeachment process itself. Similarly, the natural-born citizen requirement for presidential eligibility is enforced without additional legislative detailing on enforcement mechanisms.
This perspective suggests that the Constitution inherently grants the judiciary the power to interpret and apply its provisions, including disqualification criteria, directly from its text. The judiciary’s role in interpreting the Constitution implies it possesses the authority to enforce disqualifications under the Fourteenth Amendment, acting within the broad mandate provided by its enactment. The historical practice of judicial interpretation and enforcement of constitutional provisions, even in the absence of detailed enforcement mechanisms, supports the argument that courts can enforce Section 3 disqualifications. This is consistent with the judiciary’s foundational role in safeguarding constitutional principles and ensuring that individuals who are constitutionally disqualified do not hold public office.
Thus, by enacting the Fourteenth Amendment, Congress has implicitly authorized the judiciary to enforce its provisions, including those related to disqualification for engaging in insurrection or rebellion. This approach underscores the judiciary’s capacity to uphold constitutional integrity and order through its interpretative authority, fulfilling the requirements outlined by Trump v. Anderson without necessitating further legislative action. This argument positions the enactment of the Fourteenth Amendment as a legislative act that, by its very nature, equips the judiciary with the authority to enforce its disqualifications, drawing a parallel with other constitutional provisions whose enforcement mechanisms are understood to be implicitly judicial rather than legislatively detailed.