A unanimous decision to keep Trump on the ballot reveals bitter divisions in SCOTUS
Unanimity on the surface
This week, all nine Justices agreed that Colorado lacked the constitutional authority to keep Trump off the ballot. Further, the decision denied the right of any state to keep an insurrectionist from running for President. So, regardless of whether people like or dislike the decision, we can all celebrate that, on this issue at least, the Supreme Court (SCOTUS) showed a kumbaya spirit. And the enrobed ennead acted with amity to resolve the issue.
An accurate analysis? Not even close.
The Justices were deeply divided on the scope of the ruling. And one Justice called three other Justices “strident.”
But did they agree?
The text of the decision starts: PER CURIAM. Which is legalese for saying, “We all agree.” This unanimity is the holy grail for all courts with multiple judges. It shields the decision from political criticism — and blunts any attacks that individual judges were arguing what they believed the decision should be — rather than what the law said.
This comity was good news for Americans who want SCOTUS decisions based on legal merit — not decisions advancing a personal political agenda. But in this case, even though the effect of the decision was per curiam, the breadth of the decision was in dispute.
Where they agreed
The decision starts with a recap of how the case got to SCOTUS
A group of Colorado voters¹ contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former² President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year’s election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him.
Notes (mine):
¹ The voters were registered Republicans and Independents, not Democrats.
² ”Former President” — SCOTUS slams the door on any thought that Democrats had rigged the 2020 election.
Then, they announce the unanimous decision.
Former President Trump challenges that decision on several grounds. Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.
In short, SCOTUS reversed the Colorado Supreme Court because state courts lack the constitutional authority to determine who should be on a federal ballot.
Note: they did not deny Trump was an insurrectionist — which makes any future trial for insurrection possible. Special Prosecutor Jack Smith did not bring insurrectionist charges in the DC case, probably because he thought they would be difficult to prove. But should he get a guilty verdict for the charges he did bring, to wit:
Conspiracy to Defraud the United States
Conspiracy to Obstruct an Official Proceeding
Obstruction of and Attempt to Obstruct an Official Proceeding
Conspiracy Against Rights
there would be no bar to an insurrection trial (depending on the statute of limitations).
SCOTUS then explained that the 14th Amendment was part of an effort by the United States to vest the federal government with increased authority over the individual states — a hot topic after several individual states had recently tried (and failed) to break up the United States.
Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power struck by the Constitution.”
It is a reasonable position. It would be contradictory to say that enforcing an amendment designed to curtail state autonomy should be left up to the states. (Spoiler alert: How the 14th Amendment should be enforced is the root of the disagreement upcoming.)
The decision then points out that there has to be a determination of who is an insurrectionist (ie subject to the ban on office in Section 3)
Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized to “‘ascertain what particular individuals are embraced’” by the provision.
Adding: For its part, the Colorado Supreme Court also concluded that there must be some kind of “determination” that Section 3 applies to a particular person “before the disqualification holds meaning.”
This mandate raises the question: Who determines who is an insurrectionist? SCOTUS has the answer:
The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5³, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment.
Note: ³Section 5 says “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
(Second spoiler alert: Although all nine justices supposedly signed off on this statement, two dissents appended to the decision indicate four justices were not sold on this proposition.)
SCOTUS then revisits the right of states to determine eligible candidates for various offices. And tells states they are irrelevant when it comes to candidates for federal offices.
This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency⁴.
Note: ⁴Trump’s lawyers had made the absurd claim that the President is not an “officer” of the United States. SCOTUS shoots down that nonsense.
The following nine pages of the decision give the Court’s legal reasoning. So far, so good. They all agree that states have no say in the eligibility calculus. And the decision ends:
All nine Members of the Court agree with that result.
And: The judgment of the Colorado Supreme Court is reversed. The mandate shall issue forthwith. It is so ordered.
So what’s the problem? The decision alludes to the dissent.
Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it.
Question: Why are five Justices “our” and the other four “colleagues”? Would it not be more accurate to say, “Four of us writing separately …. “? Have the four been sent to the kid’s table? Or perhaps Supreme Court etiquette and legal niceties reserve “our” for the majority.
The dissents
1. BARRETT
All four colleagues agree that the other five went too far by saying Congress is the sole arbiter of who should be on a federal ballot. Amy Coney Barrett wrote:
JUSTICE BARRETT, concurring in part and concurring in the judgment.
I join Parts I and II–B of the Court’s opinion. I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that.
This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.
She agrees that Colorado overstepped its authority, But she would have left it at that. Traditionally, SCOTUS only decides enough to resolve the issue at hand. It does not take sightseeing tours through matters not raised.
Then, Barrett takes a gratuitous potshot at three of her colleagues (judicial modesty be damned).
The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency.
(Bolding mine)
The targets of her opprobrium are the other three female justices. Doesn’t Barrett’s choice of “strident” play into the sexist meme of women being harpies? Maybe I am reading too much into it.
Barrett is not done with her spanking.
The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly 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.
The message seems inescapable. Barrett is accusing her liberal colleagues of turning the national temperature up. Some might say this is pretty strident language.
2. SOTOMAYOR, KAGAN, and JACKSON, JJ.
The three liberals toss Chief Justice John Roberts’ words back in his face. Using the case that overturned Roe was a nice touch.
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON, concurring in the judgment.“
If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment). That fundamental principle of judicial restraint is practically as old as our Republic.
In plain English, they told the Court’s conservatives — “Where’s your respect for originalism and tradition now?” In a different setting, they could have written — “Our colleagues are hypocrites.”
They elaborate:
Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future.
And add,
In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oath breaking insurrectionist⁵ and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case
Note: ⁵They tell it like it is.
They go on to say that the conservative justices are in the tank for Trump
Yet the majority goes further. Even though “[a]ll nine Members of the Court” agree that this independent and sufficient rationale resolves this case, five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy.
And add (so even the slowest MAGA can keep up):
The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.
By Supreme Court standards, this is a knife fight. I can only imagine what the three will say if Trump’s high court bootlickers grant him immunity in the Trump DC case.