Home / General / ACB: The majority might be gratuitously pro-insurrection, but you shouldn’t say it

ACB: The majority might be gratuitously pro-insurrection, but you shouldn’t say it

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One thing it is critical to emphasize about Trump v. Anderson is that despite no individual in the majority being willing to sign the Court’s opinion in the tradition of Bush v. Gore, there were only 5 votes for the majority’s holding that Section 3 can only be enforced by specific enabling legislation by Congress. As the principal concurrence — which, in homage to Cooper v. Aaron and the dissent in Dobbs, all three of the Democratic nominees were willing to sign — points out, this for all intents and purposes reads Section 3 out of the Constitution:

And the reasoning the majority used to reach this conclusion is transparently wrong:

The idea that because Section 5 gives Congress the power to enforce the 14th Amendment the federal judiciary can’t enforce it without enabling legislation is essentially self-refuting. Obviously the majority cannot make this case about Section 1, and there is absolutely nothing in the text, structure, or purpose of the amendment that would distinguish Section 3. As for Griffin’s Case, the only thing resembling a legal argument in the majority’s opinion, I recommend all of Baude and Stokes Paulsen’s merciless decimation of the Chase’s holding that the text cannot mean what is says starting at page 644. The bottom line:

Which brings us to Amy Coney Barrett, who had enough integrity not to joining the majority’s unsigned opinion, but says that it was uncivil for her three colleagues to explain why it was wrong:

“Stridency.” One must assume that this reflects a behind-the-scenes pressure campaign to get Sotomayor, Kagan, and Jackson to withdraw their opinion. Scalia’s bullying of RBG worked during Bush v. Gore — good on the Court’s liberals for telling them to eat shit this time around. The responsibility for issuing a narrow opinion that could have been unanimous was on the majority — they chose not to take that path, and they deserve to be called out on it.

…As Jamelle Bouie points out, the majority opinion is particularly farcical in light of Shelby County denying Congress’s explicit authority to enforce the 15th Amendment:

Those who want respect, give respect.

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