A few more thoughts on the previous subject ...

Liberal originalists

I referenced in my last entry the idea a decent amount of people think the courts will save us and similar alleged wish casting. I noted that I think that is largely a strawman. 

One liberal law professor who harps on his belief that insurrection litigation is bad overall and a bad strategy for Democrats specifically cites this old post. The reference to "enthusiastic liberals" aside, the strongest backers here have often been conservatives. The hopeful Gerard Magliocca cited in the piece, for instance, is a conservative.  

Sensible liberals do not think like "Fox Mulder" that belief in history will set us free. History, however, is part of the story. Likewise, we are stuck with it to the degree that the current Supreme Court relies so much on "history and tradition."

The path to take here is not to simply cite the history behind a constitutional provision as if this will magically supply the answer. The history is mixed, and in flux, and precedent et. al. also matters when deciding the law. 

But, it's part of the story. The opinions yesterday barely cite it in fragmentary ways. The briefing and more provide a lot of fodder to provide a more complete account. And, that is just about the infamous "Griffin's Case."  

Enforcement 

Prof. Dorf is (as usual) a good place to go to get a sane response to the ruling. As he notes, confirming my take, the Fourteenth Amendment as a whole does not just limit the states. And, unlike the Strict Scrutiny Podcast (Melissa Murray, e.g., in a tweet blandly said the liberals didn't want to go there), he criticized the liberals. 

The liberals didn't want to "nullify" the amendment, but their reasoning blocking a major way it can be enforced is weak. The rather brief opinion is also vague about how they would leave open enforcement. Consider this statement:

It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.

When would this arise? In context, it would apply to a federal prosecutor, since the per curiam leaves open exclusion of state officials. Is this a reference to Griffin's Case itself, which involved a judge alleged to be disqualified?  

It does underline that this case is not just about Trump. The ban on "offices" can apply to many people. 

A final thing is that there is a lot of confusion about how the fifth section of the Fourteenth Amendment enforces the amendment. An enforcement clause is in multiple amendments, including the ban on slavery. The case is about "section three."  What about section one? Does birthright citizenship only count with federal enforcement? 

The average person doesn't closely read the Constitution. This case and the overall debate over can be a learning opportunity. Ditto the idea the alternative will be a mess of patchwork laws. That is the case now! Do they want to change that? Great! 

Strong "Dissent"

The liberals appear to me (as Strict Scrutiny Podcast agrees) to dissent while framing it as a concurrence. Sotomayor particularly might be happy to have a way to be mad while going along with the (bad) bottom-line result. It taints the majority. 

As noted, Mark Joseph Stern appears to have found it once was a partial dissent. We won't know why the word "dissent" was removed. It's like agreeing a girl cannot go to the movies, not because the movie is non-Christian, but because she's sick. You concur with the result. 

I think concurrence in judgment is an accurate take of the result as written. It agrees with the result while disagreeing with the reasoning. Did the per curiam originally say something more? If not, how would this be a dissent at all?

Final Thoughts (Maybe, For Now) 

I think it appropriate to ban people who were involved in an insurrection or rebellion from public office. This is especially true if there is a way to remove the disability as time passes or if they show some degree of rehabilitation or regret. 

The lawsuit and discussion provide continuing sunlight into these things. Likewise, they help us understand big questions like the role of history, the courts, and the political branches. We see how the Supreme Court can be hypocritical and so on. We are allowed to call them on it, even if the results are predictable. Thomas being involved is wrong.

I don't think as one person claimed this whole thing was a "fiasco." The whole thing is a sideshow. It is more important, for instance, that the Supreme Court is slow-walking the immunity case. It is still possible that behind the scenes, the two cases were somehow connected.  

For now, we can move on, including to Super Tuesday, budget items, and the State of the Union. And, we have a Trump criminal trial at the end of the month. As of now.

ETA: Chris Geidner flagged something I sort of noticed originally: there is no syllabus. Looking, per curiams in the pas have them.

A syllabus is not binding but an informative heading that summarizes the opinion, which is added by the court reporter.

Steve Vladeck notes that it is common practice for the syllabus to come later (when the opinion is formally in a bound volume) in these cases. He is not clear why.