- by Kevin Necessary
Speaking of the Court, lots of commentary on yesterday’s decision.
As I highlighted in my initial response yesterday, while the overall result was not a surprise, the 5-4 aspect that handed the disqualification power exclusively to Congress to effectuate essentially nullifies the clause entirely. (The fact that Justice Thomas, who should’ve recused from the case entirely, provided the crucial fifth vote for that radical aspect of that decision is appalling.)
Think of the decision this way: the text of the Clause itself reads like a bold Constitutional guarantee….unless, according to the Court now, a majority of Congress doesn’t feel like guaranteeing it.
Which means it’s no guarantee at all.
Here are some other reviews of that aspect of the decision:
“The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster”
“It should go without saying that Congress will not enact legislation enforcing Section 3. The Republican Party is about to renominate the alleged insurrectionist in this case as its candidate for the presidency in 2024. The party is complicit in the violent events of Jan. 6. It will not allow any insurrection-related laws to clear the Senate filibuster. The whole point of a written constitution is that it can protect individual rights and democracy even when the democratic process itself is corrupted or compromised. SCOTUS has backtracked from that guarantee just when American democracy needs it most.”
“Functionally, the majority has provided only one path forward to stop Trump: that Congress must pass a law that more clearly defines what an insurrection is, who an insurrectionist is, and what penalties should apply, and do so in time for the November 2024 election….This new requirement is not just something made up of whole cloth by five justices. It is something that will never come to pass.”
“Essentially, according to the Court’s majority, the insurrectionist clause has just been sitting on the books for 150 years with no enforcement mechanism attached, waiting for Congress to do something….[A]s of yesterday, just a slice of the Fourteenth Amendment — the one barring insurrectionists from taking office — is meaningless and toothless unless Congress wants to pass a law about it….[The decision ignores] over 100 years of jurisprudence about the Fourteenth Amendment.”
Handing the power to Congress “cannot be justified as an “originalist” [position]; it was invented out of whole cloth—and in doing so, the justices basically nullified the section entirely.”
“The [majority] 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.”
As things settle down, I think the radical nature of this 5-4 aspect of the ruling will only become more clear. And yes, it certainly puts a lie to any notion that those five Justices are either strict textualists or originalists.
Cartoon Commentary, by Kevin Necessary:
Last week’s cartoon may have elicited the strongest response yet, shared countless times and viewed by tens of thousands:
Here are Kevin’s comments on how he put it together, and other cartoons he considered (including the one above)…
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