Section 3 of the Fourteenth Amendment dies in darkness
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Chris Geidner points out that there have been multiple points over the past four years where it was essentially journalistic malpractice to withhold its should-have-been scoop on flag semiotics with the Alitos:
Second, and perhaps most astonishing to me, why was this not reported in March 2022, when The Washington Post broke significant news about Ginni Thomas’s texts to Mark Meadows urging him to take action to overturn the election. These texts from one justice’s wife, making front-page national news in the Post, happened in the same time period as when Martha-Ann Alito — again, even crediting the justice’s claim that this was all his wife’s doing — was flying the American flag in a way supported by those who wanted the election overturned.
Was Bob Woodward informed that the Post had this Alito flag story — and had sat on it — when he published his texts story in conjunction with Robert Costa?
Worse still, why did the Post still withhold this story from the public in its day-two follow-up report from Barnes himself, along with Marimow, about the ethics of a justice’s participation in cases relating to January 6 when his wife had supported those efforts.
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Fourth, and finally, after all of that, how was this possibly not raised earlier this year in conjunction with the many stories the Post published surrounding the case over whether Colorado could block Trump from the ballot under Section 3 of the Fourteenth Amendment — the clause that bars former officials from office if they “engage in insurrection”?
Of course, the U.S. Supreme Court rejected the Colorado Supreme Court’s decision barring Trump from that state’s primary ballot, holding both that Colorado couldn’t make the decision and also setting forth additional rules for how Section 3 can be applied. Notably, though, it was a bare five-justice majority who issued that further-reaching decision.
“In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed,” the trio of Democratic appointees wrote in a portion of their opinion disagreeing with the majority. Justice Amy Coney Barrett also declined to join that section of the majority’s “per curiam” opinion.
As Alito provided an essential fifth vote hollowing out the Fourteenth Amendment’s bar to insurrectionists’ holding office, the Post sat silent.
Personally, I would say that an insurrectionist flag flying outside of a justice’s home is highly material when the justice was considering and then part of a 5-4 majority opinion making the insurrection clause for all intents and purposes unenforceable. But the institutional web around the Supreme Court is a club and you ain’t in it.