Well, indeed it isn’t, but it is quite apropos factually, which is sometimes supposed to count in legal matters. Both Mark Joseph Stern at Slate, The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster, and Ilya Somin at the Volokh Conspiracy, Supreme Court rules for Trump in Section 3 disqualification case, are ready, willing, able to tell you what a steamin’ crock o’ crap the decision (Trump v. Anderson) was, which first unanimously (and expectedly) overturned the Colorado Supreme Court’s ruling that Donald Trump’s name could not appear on the ballot, because Section 3 of the 14th amendment prohibits those guilty of “insurrection or rebellion” from holding public office, but then went a grossly unconstitutional extra mile in the form of a 5-4 “addendum” (aka “lie”), “finding” (as in “making up in order to cover Donald Trump’s big fat ass”) that Section 3, unlike the rest of the amendment, requires congressional legislation to make it operational.
Section 3 states
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Note the last sentence, “But Congress may by a vote of two-thirds of each House, remove such disability.” But the Roberts Court, in its infinite culpability, “ruled” (“ruled”, as in “lied”) that Congress could “remove such disability” from everyone by simply failing to enact legislation defining the procedure for determining whether a person “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Which, of course, is precisely what Congress, by not creating such legislation has “done”. Get it, suckers? We win, you lose!
Such arrant thimble-riggery received the beatdown it so richly deserved1 at the hands of Justice Sonia Sotomayor and her Democratic sisters on the bench, Elena Kagan and Ketanji Brown Jackson, and even Republican Justice Amy Coney Barrett (who should not be confused with Ivy Compton-Burnett)2 agreed with the result but ludicrously gagged on the daring of her Democratic sisters for daring to openly speak truth to hypocrisy and partisan greed:
In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particu larly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.
No, Amy. The “the message Americans should take home”, and will take home, if there is any justice left in this country after 7 years of Donaldolia, is that your Republican “brothers” tore up the Constitution in order to do their maximum leader a solid, something they’ve done repeatedly, acting quickly on cases when they can help the Donald with at least a show of legitimacy and dragging their feet on cases when they can’t, as Mark Joseph Stern very accurately recounts in his article linked to above.
And so Amy joins a veritable army of discretely ass-kissing Trump enablers—the “non swallowers”, one might say3—for, according to Amy, though rewriting the Constitution so that the biggest criminal in American history will have a better shot at regaining the presidency is perhaps “inappropriate”, saying so out loud is entirely unacceptable. Long ago, not very liberal Democratic Senator Eugene McCarthy had this to say about “moderate” Republicans: “If you’re drowning 15 feet from shore, a moderate Republican will throw you a 10-foot rope.” I guess things haven’t changed much in DC.
Afterwords
Also at the Volokh Conspiracy. Joseph Adler wonders Were there Last Minute Changes to Trump v. Anderson? In particular, Adler can’t find any “stridency” in the Democrats’ partial dissent and speculates that changes in the majority opinion led to changes in the Democrats’ partial dissent, eliminating the (supposed) “stridency”. If that’s the case, Barrett should have dropped the entire last paragraph of her opinion—or, indeed, dropped the whole thing and simply joined with the three who got it right, but, apparently, according to Mr. Adler’s scenario, she just wasn’t paying attention. In my scenario, she was paying attention, which was why she did file a separate opinion. She wanted to maintain a “respectable” degree of separation between herself and those awful liberals and lacked the guts to join whole-heartedly with her Democratic sisters, as she damned well should have.
UPDATE
Ilya Somin has an update on what prominent “originalist” Michael Rappaport, Director, Center for the Study of Constitutional Originalism at the University of San Diego, calls The Originalist Disaster in Trump v. Anderson. Mike, with Ilya’s hearty concurrence, demolishes the validity of even the Court’s main ruling, which won the support of all nine justices, that states may not regulate the appearance of federal candidates on state ballots, not to mention the 5-4 ruling that Section 3 of the 14th amendment is not self enforcing. Mike very sourly concludes—too sourly even for Ilya’s taste, I might note—that
In the end, it is understandable that the Supreme Court would have decided the case on this nonoriginalist basis. It does not want to wade into the question of whether Trump engaged in an insurrection. The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated. But let’s not kid ourselves that this was originalism. It was not.
I would only add if Mike thinks that that this sort of “unprincipled, pragmatic resolution” isn’t the rule, rather than the exception, whenever “conservatives” on the Court can’t get the outcome they want on the basis of “originalist” or “textualist” principles, whatever the fuck they are, well, he’s kidding himself too.
1. Since the Court numbers each opinion separately, go to page 15 of the PDF file for the Democratic dissent.
2. Amy, I presume, is both less bitchy and less talented than Ivy. Ivy, who was nothing if not self-deprecating, once said of her work, “No one ever picks up a Compton-Burnett without quickly wishing to put it down.”
3. Yes, that is harsh. I guess I’m pissed.
