It's been a week and a half since SCOTUS ruled on Trump v. Anderson. The general media sentiment (left, center, right) has largely focused on the temporary abandonment of textualism and originalism because, "nothing in the Constitution requires that we endure such chaos". To my dismay, I didn't find anything discussing (what I perceived) to be the Court's repeated characterization of the Fourteenth as a transfer of power as the reason it's different from the Constitution and Twenty-second. So take that last post with a grain of salt.

The law subreddit had a link to a gigantic text wall with spelling and grammar errors and a profile pic that didn't shout "law degree" or "academia". Some of the comments were like, "Oh Seth..." so I guess he has some media exposure. Nonetheless, the comments section delivered the author's interesting point:

FuguSandwich

[I'm not a lawyer], but the 3 relevant excerpts from that wall of text that form the basis of the author's argument seem to be: In Trump v. Anderson (text), the United States Supreme Court ruled 5-4 that Congress must make "some kind of 'determination'" that an individual has "engaged in" the act of "insurrection" before state officials are empowered to remove such a person from a federal general election ballot pursuant to such federal guidance and Section 3 of the Fourteenth Amendment to the United States Constitution. ... Of course, Trump v. Anderson, which establishes as a constitutional floor that a vote of Congress sufficient to pass legislation-thus, a majority vote-is required to find that an individual engaged in insurrection under Section 3 of the Fourteenth Amendment, is now settled law. ... And on January 13, 2021, a majority of the United States House of Representatives (232-197) voted that Trump had engaged in the act of Incitement of Insurrection. And on February 13, 2021, a majority of the United States Senate (57-43) voted that Trump had engaged in the act of Incitement of Insurrection. It seems to me that "some kind of determination" is doing a lot of work here. SCOTUS didn't really define it, but this probably is not what they had in mind.

Huh. Much of the punditry has covered how the conservative justices went the extra mile (beyond saying states can't use 14.3 on candidates for federal offices) to say that 14.3 is not self-executing. Legislation to enforce 14.3 would require a majority vote in both houses and it seems that, while the Senate failed to convict with 2/3, they did meet that majority threshold.

There are probably a host of technical issues with this claim but on principle I wouldn't call it unsound.

Adam Unikowsky

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.

Yeah. Strange that 14.3 is not self-executing federally but is(?) self-executing for intrastate applications. I liked this post, it had some light humor:

Adam Unikowsky

There's nothing wrong with thinking that a 9-0 Supreme Court decision is wrong-there are several unanimous decisions with which I personally disagree-but the fact that all nine Justices agreed on the disposition of the case is surely a point in favor of that disposition. Of course, four Colorado Supreme Court Justices went the other way, but it's universally recognized that U.S. Supreme Court Justices are better at judging than lower-court judges; otherwise, how could they have become Justices?

Back in January I linked an Atlantic op-ed that referred to Petitioner's question (for the court to address) as a 'Cuisinart question'. The author suggested that the ambiguity of the question was possibly the result of bad/passthrough lawyering or, more likely, that the arguments were individually quite weak. I offered a fourth possibility, "We don't know what grounds you'll use to overturn the CSC decision so we'll leave a blank sheet and just go ahead and fill in your justification."

Adam Unikowsky

One reason I gave a 20% chance of Trump losing is that all of Trump's legal arguments had serious weaknesses. The Supreme Court dealt with this problem by basing its opinion on a rationale not proposed by Trump. The Court didn't even mention the two lead arguments in Trump's brief, i.e., that Trump isn't an "officer of the United States" and that Trump's Tweets didn't rise to the level of insurrection.

Certainly there would have been substantially more spillover if the court had made a decision on the 'officer' thing or the insurrection thing. This decision seemed to follow the Bush v Gore 'nonprecedential' mold by narrowly targeting 14.3 as it applies to federal offices. That said, commentators have pointed out that the verbiage used in 14.3 appears elsewhere in the Constitution.

Adam Unikowsky

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. This argument is difficult to swallow. The Federal Constitution is the law of the land. It governs not only the federal government, but also the states. States do not need permission to apply the law that binds them. Indeed, the Supreme Court has frequently held that state courts must apply federal law, even if they don't want to. ... The Supreme Court acknowledged that states run presidential elections under the Electors Clause, but declared that "there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates." I don't get it. There is no "implicit" power being claimed. The state has the explicit power to run presidential elections. That includes the power to ensure that the presidential election operates according to law. Law includes federal law, including federal constitutional law.

If nothing else, there seems to be consensus that this ruling is exceptional.

Adam Unikowsky

But it's artificial to suggest that "the law" excludes considerations of practical consequences, at least when those consequences are sufficiently severe. And if there's ever been a time to be on Team Statesmanship, this is it. So I could be persuaded that this case is the 1%. The best reason to be a doctrinal purist 100%, rather than 99%, of the time, is that diverging from doctrinal purity even once opens up a Pandora's Box. It sets the precedent that courts can use preferred outcomes to drive reasoning whenever they want.

The erosion of the legitimacy of the Supreme Court continues, with and without Harlan Crow.

Prof Jill Lepore

If the Court is now interested in consequentialist arguments, here's one: in the past quarter century, more than three hundred thousand American children have experienced armed civilians attacking their schools.

The Atlantic

Referring to the potential problems that could be caused by individual state enforcement of the prohibition, the justices write that "nothing in the Constitution requires that we endure such chaos-arriving at any time or different times, up to and perhaps beyond the Inauguration." Not that this should have mattered to the Court's originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself.

The Justice Gorsuch quote has made the rounds, "Suppose originalism does lead to a result you happen to dislike in this or that case. So what?"

The Atlantic

They felt that a plain reading of Section 3 of the Fourteenth Amendment would lead to chaotic or adverse outcomes, so they not only ignored it but also essentially amended the Constitution by fiat. Justice Amy Coney Barrett... wrote separately, and seemed to urge the media to avoid stating the obvious, that the justices were doing politics rather than law. In what will hence be referred to as the Streisand Concurrence. Although I feel like describing this as politics both weakens the argument and misses the greater point (which is the specific purpose of the editorial); the justices abandoned originalism.

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