by Andrew C McCarthy at The National Review
It was important for the Supreme Court to speak with one voice in batting down the theory that states are empowered by Section 3 of the 14th Amendment to remove alleged insurrectionists from the ballot by their own ad hoc procedures. The justices have done that. But don’t be fooled by the kumbaya coverage. Trump v. Anderson is a 5–4 decision.
In essence, a majority consisting of five of the Court’s six conservative justices (Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) went beyond the question about state power and ruled that Section 3 can only be enforced by congressional legislation under Section 5 of the 14th Amendment, and that the only existing statute along those lines is the penal law against insurrection, Section 2383 of the federal code.
What that means is that if Donald Trump were to win the presidential election, congressional Democrats would not be able — in the next January 6 joint session of Congress — to refuse to ratify his victory on the grounds that he is an insurrectionist.
Under the Court’s holding, it is now a prerequisite to enforcement of the Section 3 disqualification that a person must have been convicted under the insurrection statute. Congress could change this by new legislation, but there is no chance of that happening in this deeply divided era.
Justice Barrett did not join this part of the Court’s per curiam opinion. One does not get the sense that she necessarily disagrees with it. Hers is a “sufficient unto the day” take — i.e., having decided a fraught issue, there is no need to decide a related fraught issue. By her lights, it was enough to hold that the states may not do what Colorado tried to do.
The three progressive justices…
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