Opinion of Sotomayor, Kagan, and Jackson, JJ., concurring in judgment
It simply creates a special rule for the insurrection disability in Section 3.
The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose. It cites Griffin’s Case, but that is a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge. See ante, at 5 (quoting 11 F. Cas., at 26). Once again, even petitioner’s lawyer distanced himself from fully embracing this case as probative of Section 3’s meaning. See Tr. of Oral Arg. 35–36. The majority also cites Senator Trumbull’s statements that Section 3 “ ‘provide[d] no means for enforcing’ ” itself. Ante, at 5 (quoting Cong. Globe, 41st Cong., 1st Sess., 626 (1869)). The majority, however, neglects to mention the Senator’s view that “[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,” with the proposed legislation simply “affor[ding] a more efficient and speedy remedy” for effecting the disqualification. Cong. Globe, 41st Cong., 1st Sess., at 626–627.
Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. 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. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “ ‘tailor[ed]’ ” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office. *** “What it does today, the Court should have left undone.”
