Despite the unanimity of the justices, I disagree with the Supreme Court’s judgment that states may not enforce section 3 of the 14th A. That judgment is the bottom line. But far more dangerous is the majority opinion, which includes discussion that goes beyond this bottom line. Five justices have tried to prospectively prescribe two requirements irrelevant to the Colorado case. First, they claim that only Congress, not the judiciary or executive branch may enforce section 3. 1/ #LawFedi
Second, claim Justices Roberts, Thomas, Alito, Gorsuch, and Kavanaugh, Congress must pass specific legislation to disqualify insurrectionists who took an oath to uphold the Constitution. Nowhere is this in the text of the 14th Amendment. Nor can it be justified by reference to historical practice. 2/ #trumpVanderson
There is no historical practice of implementing section 3 against a federal presidential candidate, president-elect, or sitting president. We have never before had one of these who was an oath-breaking insurrectionist. 3/
So, the majority opinion in #trumpVanderson, adopted by five justices (Roberts, Thomas, Alito, Gorsuch, Kavanaugh), insists that
a) section 3 requires implementing legislation, which means
b) only one branch of the federal government, Congress, may enforce section 3, and
c) these five justices prescribe a wholly novel, extra-textual, and entirely unprecedented set of requirements for any disqualification legislation Congress might pass. 4/ #LawFedi
The justices in the five person majority in #TrumpVAnderson show, once again, their utter disdain for the most elementary features of U.S. rule of law. They disregard text and precedent and trample separation of powers. Unsurprisingly then, their decision is primarily a piece of partisanship only masquerading as judicial work. 5/ #RuleOfLaw
The majority opinion also disregards rule of law by virtue of the participation in the case by Clarence Thomas, whose wife played an active role supporting the effort to overturn the lawful election results in 2020, and by the participation of justices who owe their appointments to Trump, the beneficiary of the majority’s position. 6/ #JudicialEthics
All in all, the majority opinion in #trumpVAnderson is a disgrace.
It has been clear for years that the most promising possible nonviolent way to prevent Trump from becoming president again is by turning out as many voters for his general election rival as possible, particularly in swing states. (I know, I certainly know, that even a clear win of electoral votes by a rival is no guarantee Trump won’t try to seize office.) 7/7