David French
The Supreme Court Just Erased Part of the Constitution
By David French
Opinion Columnist
As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.
In the aftermath of the oral argument last month, legal observers knew with near-certainty that the Supreme Court was unlikely to apply Section 3 to Trump. None of the justices seemed willing to uphold the Colorado court’s ruling, and only Justice Sonia Sotomayor gave any meaningful indication that she might dissent. The only real question remaining was the reasoning for the court’s decision. Would the ruling be broad or narrow?
A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.
A somewhat broader ruling might have held that Trump did not engage in insurrection or rebellion or provide aid and comfort to the enemies of the Constitution. Such a ruling would have sharply limited Section 3 to apply almost exclusively to Civil War-style conflicts, an outcome at odds with the text and original public meaning of the section. It’s worth noting that, by not taking this path, the court did not exonerate Trump from participating in an insurrection.
But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
But Section 5, on its face, does not give Congress exclusive power to enforce the amendment. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson pointed out in their own separate concurring opinion, “All the Reconstruction amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” While Congress may pass legislation to help enforce the 14th Amendment, it is not required to do so, and the 14th Amendment still binds federal, state and local governments even if Congress refuses to act.But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.
It’s extremely difficult to square this ruling with the text of Section 3. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The Section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”
In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.
As Kagan, Sotomayor and Jackson point out, this approach is also inconsistent with the constitutional approach to other qualifications for the presidency. We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.
In one important respect, the court’s ruling on Monday is worse and more consequential than the Senate’s decision to acquit Trump after his Jan. 6 impeachment trial in 2021. Impeachment is entirely a political process, and the actions of one Senate have no bearing on the actions of future Senates. But a Supreme Court ruling has immense precedential power. The court’s decision is now the law.
It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.
- =============
What’s behind the Supreme Court’s furious agreement on Trump in Colorado
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” — Chief Justice John G. Roberts Jr., concurring in Dobbs v. Jackson Women’s Health Organization (2022)
“What it does today, the Court should have left undone.” — retired Justice Stephen G. Breyer, dissenting in Bush v. Gore (2000)
Those quotations, which bookend the concurring opinion released on Monday by three liberal justices on whether former president Donald Trump can be removed from the ballot in Colorado, amount to the judicial equivalent of fighting words. They constitute a two-part slap across the face of their supposedly conservative colleagues, accusing them of outrageous judicial activism in shielding Trump from being disqualified from holding office under Section 3 of the 14th Amendment.
“In a sensitive case crying out for judicial restraint,” write Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, the court “abandons that course. … Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
The justices aren’t this explicit, but I’ll be their anger translator: You guys are in the tank for Trump in a way that is unnecessary, unseemly and — take that, Chief Justice — hypocritical.
Justice Amy Coney Barrett took a similar position, but with a far more soothing tone. She didn’t join the court’s broadest holding, but she implicitly lectured her colleagues for stirring up the masses. “In my judgment, this is not the time to amplify disagreement with stridency,” Barrett wrote. Stridency, really? Gendered much?
“The Court has settled a politically charged issue in the volatile season of a Presidential election,” Barrett cautioned. “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.”
To translate again: Simmer down. The children can hear us.
This is the surprising, and surprisingly furious, denouement of a dispute that was both high-stakes and lacking in evident suspense, especially in the wake of an oral argument in which the justices seemed unanimously disinclined to bounce Trump from the ballot.
I confess to being somewhat perplexed, as were a number of liberal legal scholars with whom I spoke after the ruling, about the apparent magnitude of the rage. There is an infuriating tails-Trump-wins, heads-his-critics-lose aspect to the decision in Trump v. Anderson: Where exactly, is the forum in which Trump is finally held to account for his actions?
But the practical implications of the ruling, for reasons I’ll get to, aren’t enormous. What helps explain the level of anger here, I suspect, is the liberals’ fury not just at this decision, but also at the continuing conservative power grab, all under the bogus cloak of judicial modesty. And this is pure speculation, but I wonder whether the liberals’ frustration over other aspects of the court’s behavior, such as the undue delay in hearing the Trump immunity case, might be boiling over and manifesting itself in the Colorado ruling.
The court’s unanimous bottom line in Trump v. Anderson, that a single state doesn’t have the authority to use Section 3 to disqualify a candidate for federal office, was correct, as a matter of constitutional law, the structure of our federal system and the broader public interest. Section 3, enacted in the aftermath of the Civil War to deal with the problem of ex-Confederates seeking to return to power, prevents former officials who “engaged in insurrection” from holding state or federal office.
The Colorado Supreme Court, concluding that Trump was an insurrectionist within the meaning of Section 3, ordered him kept off the Super Tuesday primary ballot as a result. “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the court said in its per curiam ruling. As the liberal justices noted: “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.”
Where the two sides diverge is with the majority’s digression into the arena of federal enforcement of Section 3 — “musings,” the liberal justices said, that “are as inadequately supported as they are gratuitous” and that would “insulate all alleged insurrectionists from future challenges to their holding federal office.” The majority asserts that, for Section 3 to be enforced, Congress must enact further legislation outlining how and to whom it applies — a hurdle that they haven’t required for any other section of the 14th Amendment.
Not just that, the majority instructs, any such legislation must reflect “congruence and proportionality.” What gives with making pronouncement on issues that aren’t remotely implicated by Colorado’s action?
I get that the court would prefer to nip future challenges to Trump’s legitimacy in the bud; it wants out of the unpleasant and seemingly unending business of deciding Trump cases. Could Congress refuse to certify Trump’s election on the grounds that he is an insurrectionist not entitled to hold office? Could an executive order by an insurrectionist president — call him Donald Trump — be challenged on the grounds that he is not entitled to hold office? Could a prosecution by an insurrectionist attorney general — call him Jeffrey Clark — be similarly called into question?
Confronted with these questions down the road — say, once Trump was back in the White House — there’s little chance the court would declare a sitting president constitutionally disqualified from holding office.
All of which helps explain why the liberal justices are fed up with a court that professes judicial restraint but consistently arrogates power for itself. The most telling aspect of Trump v. Anderson might be the glimpse it offers behind the scenes of a court that, even when it appears unanimous, is deeply divided.
The Supreme Court Once Again Reveals the Fraud of Originalism
The justices did not want to throw Trump off the ballot, and so they didn’t.
March 4, 2024, 3:15 PM ET
It was always unlikely that the Supreme Court, with its right-wing majority, would uphold Colorado’s ruling throwing Donald Trump off the ballot merely because he tried to execute a coup after losing the 2020 election. As the unanimous per curiam ruling issued Monday overturning Colorado’s decision suggests, a Court made up of nine liberal justices may not have done so either.
That’s because sustaining the Fourteenth Amendment’s bar on insurrectionists holding office as written would put the justices in the difficult political position of looking like they were deciding an election. Such a thing could undermine popular support for the Court as an institution. It might prompt Congress to act to constrain the Court’s power. It could have led to a massive and potentially violent backlash from Trump supporters.
The unanimous part of the decision found that states do not have the authority to disqualify candidates for federal office, the least absurd and damaging rationale for avoiding disqualification, one that sidestepped rewriting history or contorting the English language on Trump’s behalf. The justices did not declare that January 6 was not an insurrection or that Trump did not engage in such, as elite pundits have twisted themselves into pretzels to argue in these past months; they did not decide that the president is not an officer “under” or “of” the United States, as acolytes of the conservative legal movement have urged.
[Quinta Jurecic: The Supreme Court is eager to rid itself of this difficult Trump question]
Instead, the justices argued that allowing state enforcement would lead to anarchy that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” Referring to the potential problems that could be caused by individual state enforcement of the prohibition, the justices write that “nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”
Not that this should have mattered to the Court’s originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself. But in this case, as the conservative legal scholars William Baude and Michael Stokes Paulsen wrote last year, originalists’ preferred interpretive prisms—the plain text of the amendment, how it was understood at the time, the intent of its framers—would have led to Trump being disqualified, a result that, apparently, none of the justices liked.
Every one of them decided, as transparently as possible in this case, that the text of the Constitution would have forced them to do something they did not want to do or did not think was a good idea, and so they would not do it. The justices did not want to throw Trump off the ballot, and so they didn’t. Not only that, but in order to head off the unlikely scenario of Congress trying to disqualify Trump after the election, they said that Congress must specifically disqualify individual insurrectionists, despite such a requirement having no basis in the text. Even if you agree with the majority that this was a wise decision politically, it cannot be justified as an “originalist” one; it was invented out of whole cloth—and in doing so, the justices basically nullified the section entirely. As the three Democratic-appointed justices note, “Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate.”
The thing to understand about this case is that, with the exception of the ruling’s partial unanimity, it is little different from many other recent big cases in which “originalism” supposedly carried the day, whether the topic was abortion rights, guns, voting rights, or something else. The conservative justices have a majority, and they may work their will. But the originalism they purport to adhere to is nothing more than a framework for reaching their preferred result in any particular circumstance. They felt that a plain reading of Section 3 of the Fourteenth Amendment would lead to chaotic or adverse outcomes, so they not only ignored it but also essentially amended the Constitution by fiat.
[Quinta Jurecic: January 6 is exactly what the Fourteenth Amendment was talking about]
Justice Amy Coney Barrett—alone among the Republican appointees in refusing to go along with their unilateral rewriting of the Fourteenth Amendment—wrote separately, and seemed to urge the media to avoid stating the obvious, that the justices were doing politics rather than law. “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,” Barrett wrote. “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.
The message Americans should take home from this case is that when Justice Samuel Alito says, “I do think the Constitution means something and that that meaning does not change,” what he means is that the Constitution changes to mean what he would like it to mean. They should take home the recognition that when Justice Neil Gorsuch says, “Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” he would never allow such a thing to happen if he could avoid it. And they should understand that when Barrett herself says that the Constitution “doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it,” she is not telling the truth, but she would prefer you not point that out.
This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach. Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent.
=============
https://www.theatlantic.com/ideas/archive/2024/03/trump-v-anderson-unanimous-decision/677635/
The Supreme Court Is Not Up to the Challenge
The decision in Trump v. Anderson is another sign that the nation’s highest court will not help the country out of its political crisis.
March 4, 2024, 2:47 PM ET
Updated at 6 pm ET on March 4, 2024.
The United States is in a moment of democratic crisis, and the Supreme Court has no idea what to do.
Today, the Court held in Trump v. Anderson that Colorado cannot disqualify Donald Trump from the state’s primary ballot as an insurrectionist, a decision that functionally dooms the existing efforts to bar Trump from the presidency under Section 3 of the Fourteenth Amendment. On its face, the ruling is straightforward. All nine justices agreed that states do not have the power to disqualify candidates for federal office. Looked at more closely, though, that seeming unanimity papers over a roiling disagreement among the justices not only about how best to interpret the Fourteenth Amendment but also about the appropriate role for the Supreme Court in this period of political and constitutional tension.
Over the past several months, a variety of voters and advocacy organizations invoked Section 3 in efforts to block states from allowing Trump onto the ballot. Once the Colorado Supreme Court found that Trump was disqualified, it was inevitable that the Supreme Court would have to take up a case of such overwhelming importance. But the justices, both liberal and conservative, seemed deeply uncomfortable with the idea that they might have to reach a substantive decision on whether January 6 constituted an insurrection, or take an action as dramatic as blocking a major-party presidential candidate from the ballot.
One way to read this hesitation was as an institutional nervousness about touching the hot stove of the political debate over Trumpism, especially at a time when the Court’s political legitimacy has taken a nosedive following a string of far-right rulings. The Court has an interest in maintaining its own reputation, however weakened, as a lofty arbiter of high-minded legal disputes. That concern might make some sense in normal times. But with the authoritarianism of a second Trump term within view, it seems a bit like making sure that the living-room rug is properly vacuumed while the house is burning down.
That same nervousness comes through in the Court’s ultimate resolution of the case. The justices chose to avail themselves of an escape hatch, reasoning that the Fourteenth Amendment allows states to disqualify candidates for state office but not for federal office. This neatly allows them to dispose of the Colorado Supreme Court’s ruling by focusing on a seemingly dull, technical issue concerning the mechanics of the Fourteenth Amendment.
[Mark A. Graber: Of course presidents are officers of the United States]
The problem with this reasoning is that it is wrong. Despite the justices’ paeans to history, this line of argument is deeply disconnected from what the historical record shows about the Reconstruction-era understanding and implementation of Section 3. The Court claims that the amendment wasn’t meant to allow states power over federal elections, but, for example, the election-law expert Edward B. Foley has described in The Atlantic how Ohio’s state legislature chose in 1868 against electing a Senate candidate who was arguably disqualified for the seat under the Fourteenth Amendment. In this sense, there’s a palpable desperation to the Court’s ruling: The justices were looking for some way, any way, to get themselves out of this bind, even if their reasoning is profoundly unconvincing.
But as you keep reading, the ruling gets even stranger. The opinion is fashioned as a per curiam ruling, a method the Court typically uses when the justices wish to speak with one voice. Yet it’s packaged with two concurrences—one from Justice Amy Coney Barrett, one from the liberal bloc of Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—that each, in its own way, underlines the Court’s desperation.
Barrett, in her concurrence, stresses the Court’s unanimity. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she writes. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” Without intending to, this serves to acknowledge the truth that the per curiam ruling attempts to avoid: The Court was seemingly afraid that a ruling against Trump would thrust the justices into a political dispute, but so, too, does this ruling for Trump. This is, after all, a conservative Court ruling to allow a Republican candidate—who himself appointed three justices—to remain on the ballot despite an attempted coup. Barrett, though, would prefer it if nobody talked about this.
But the liberals’ concurrence shatters Barrett’s insistence that, “for present purposes, our differences are far less important than our unanimity.” The tone of their opinion is strikingly angry, citing both Dobbs v. Jackson Women’s Health Organization and Bush v. Gore—two Supreme Court rulings that damaged the Court’s legitimacy by giving the justices the appearance of engaging in unprincipled politicking. And they warn that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
This sweeping rhetoric is somewhat odd given how small the liberals’ disagreements with the conservative majority are in the decision itself. Kagan, Sotomayor, and Jackson agree that states have no power to disqualify presidential candidates. Their disagreement, rather, is with the majority’s choice to go a step further and find that candidates for any federal office can be disqualified only by an act of Congress that meets a certain set of standards—which, presumably, the Court will now be responsible for evaluating. This is a meaningful distinction. But for the liberals, it is also a relatively nitpicky basis on which to fashion themselves as defenders of Section 3’s “important, though rarely needed, role in our democracy.” After all, if Section 3’s role is so important, why couldn’t these three justices address the issue of whether Trump is an insurrectionist head-on?
One possible reading is that the liberals don’t have the appetite for tackling the constitutional problem of Trump, either. Acknowledging that the Fourteenth Amendment was meant to serve as a protection for democracy against would-be authoritarians—and that Trump himself represents that threat—is a step too far for them as well. They want to signal that January 6 was democratically out of bounds, but they don’t want to have to state it explicitly. Yet this is exactly what the Fourteenth Amendment arguably requires them to do.
Barrett’s insistence on the Court’s unanimity is right in one important sense. Across the political spectrum, the justices’ true interests lie in preserving the power and legitimacy of the Court itself. The same dynamic is at work in the justices’ decision to hear Trump’s claim of presidential immunity, which will have the effect of potentially delaying a verdict in the January 6 criminal case until after the election but reasserts the Court’s role as the ultimate arbiter of weighty legal issues. In Anderson, the conservatives are more aggressive about claiming a role for the Court in future disputes over the scope of Section 3, but the liberals, too, remain unduly focused on preserving the Court as an institution.
The Court wants to be seen as above politics, but it isn’t. Politics has arrived at its door. The Anderson decision achieves, in its own way, a remarkable feat: It manages to expand the Court's own power while also expressing a deep uncertainty about what, in a moment of crisis, that power is actually for.
=============
https://slate.com/news-and-politics/2024/03/amy-coney-barrett-trump-ballot-opinion-weird.html
Amy Coney Barrett’s Weird, Passive-Aggressive Trump Ballot Opinion
The Supreme Court allowed Donald Trump to remain on the ballot in Colorado—and every other state—in an opinion on Monday that was less unanimous than it seems on the surface. Every justice agreed that a state cannot unilaterally disqualify a presidential candidate from the ballot because of their participation in an insurrection. But the court split sharply on the question of how, exactly, the constitutional bar against insurrectionists holding office might be enforced in the future.
On a bonus Slate Plus episode of Amicus, Dahlia Lithwick discussed these fierce disagreements, including Justice Amy Coney Barrett’s effort to bridge the divide, with Mark Joseph Stern and Jeremy Stahl. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: In both the majority opinion and Justice Amy Coney Barrett’s concurrence, there’s such a vibe here of Y’all, we’re not fighting, we’re OK! Don’t worry about the court. Barrett says: “In my judgment, this is not the time to amplify disagreement with stridency.” And she adds: “Particularly in this circumstance, writings on the court should turn the national temperature down, not up.” There’s this weird, passive-aggressive vibe where everybody is kind of pissed off but telling us over and over again: We’re not fighting! We love each other! The court is working! This sense of performing unity and performing minimalism falls really heavily on the four women of the court in their separate concurrences.
Mark Joseph Stern: Right. It’s boys vs. girls. The girls are doing law. The boys are doing … something that doesn’t look a lot like law!
I guess we should give Barrett some credit for having a flash of integrity here. She did refuse to sign on to the part of the majority opinion that effectively repealed the insurrection clause by saying that only Congress can enforce it. She made it clear that she disagrees with the majority’s decision to, in her words, “address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
And that is Professor Barrett at her best. She does this from time to time: Last term, she wrote separately, in a case called Samia v. U.S., to criticize Justice Clarence Thomas for manipulating history and representing it incorrectly. I think sometimes Barrett decides that she’s too smart and has too much principle to go along with the conservatives’ BS. But when she reaches that point, she feels the need to apologize for doing it. That’s what she did here, saying, “This is not the time to amplify disagreement with stridency.” By the way, I don’t think there’s anything in the liberals’ opinion that’s strident—that feels like an entirely unwarranted subtweet. And yet here she is, writing separately to say, basically: I think these guys in the majority went way too far, and I don’t really understand why. I find that to be an interesting rhetorical move. She didn’t have to do it. She could have just noted that she concurred with only part of the majority opinion. Instead, she went out of her way to chastise the majority. And yet she wants the country to walk away, thinking, Wow, they really do love each other. I just don’t think she can actually have it both ways.
Jeremy Stahl: She really does seem to chastise the progressive justices. And then she tells them what the important part of their concurrence is. She says: “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.” So, forget all the rest of what the progressives wrote in their concurrence; forget their scorching opposition to what five justices did today. What the American people need to accept and appreciate is our unanimity. That’s all that really matters. She delivers this lecture with a little smack in both directions, to the justices on her right and left.
Lithwick: We have to look at this case in the context of the whole rest of the term too. We have the presidential immunity case, which the court is kicking down the road to April. We have abortion and guns and the administrative state and so much else. This is a bonkers term. And the justices keep saying: The one principle we’re all going to agree upon is that we decide cases narrowly as umpires. Nothing to see here! We’re fine! It feels less than persuasive to me.
I do wanna ask both of you about what didn’t get decided today. After we all spent a very long time trying to decide if the president is an “officer” under Section 3 of the 14th Amendment, the court didn’t touch that. Does it matter?
Stern: Clearly, the court was uninterested in ultra-technical, semantic, nitpicky arguments about whether the 14th Amendment covered Trump. There was some talk about it at oral arguments, but the court didn’t reach it, I guess because they didn’t need to. The concurrences didn’t really touch it either. And I think that was wise because the natural reading of the 14th Amendment does encompass the president. There are some counterpoints, but we should not get into them because, frankly, this is one of the most annoying legal arguments I have covered in my entire life.
Stahl: I think it’s also important to talk about the other piece they didn’t touch, which was the question of whether Donald Trump engaged in insurrection or not! The only way they touched it was to say: Well, different states might have different evidentiary standards. One might have a preponderance-of-the-evidence standard. Another might use a criminal conviction as the standard. There are different ways that states could decide this on an individual state-by-state basis, which is why we should not have states deciding this on their own.
But they didn’t actually touch the Colorado Supreme Court’s decision that Trump did, in fact, engage in insurrection. And to the extent there was wisdom in the majority opinion, that was a wise thing to leave out. They were better off not wading into that, especially since it probably would have yielded an even more divisive and frustrating answer.
=============
https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html
Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling
The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.
What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?
We cannot know with any real certainty. We may never. But we can certainly speculate!
First, a recap: The Supreme Court ruled that an individual state may not disqualify a presidential candidate from the ballot under Section 3 of the 14th Amendment, which bars insurrectionists from regaining public office. All nine justices agreed with this bottom line. Five justices went further, however, declaring that only Congress may enforce Section 3 against federal candidates. In a brief opinion, Justice Amy Coney Barrett said the court should not have reached this broader question about congressional authority. Sotomayor made the same point in a longer, more acerbic opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Her opinion was styled as a concurrence, but we now know that it was actually, probably until late in the drafting process, labeled a dissent. We also know that the opinion was originally ascribed only to Sotomayor.
Now the speculation: We can guess that the bulk of this opinion was authored by Sotomayor herself. It bears some of the justice’s trademarks, including a realpolitik assessment of the majority’s handiwork and stormy rhetoric about its consequences for democracy. In addition, during oral arguments last month, Sotomayor sounded the most skeptical of Trump and his various legal theories. Perhaps, after arguments, the court convened to vote on the case, and a majority settled on a sweeping rationale in Trump’s favor. Sotomayor then moved forward with a dissent faulting the majority’s overreach. At some point, that dissent turned into the opinion “concurring in the judgment” that we saw on Monday.
Which leads to a second question: Why did a stand-alone Sotomayor dissent transform into a three-justice concurrence? Here, the most rational intuition is that Kagan and Jackson were keeping their votes fluid in the hopes of striking a bargain to avert a gratuitously broad opinion effectively repealing the insurrection clause. This bargain may have been simple; the two justices might have joined with Barrett to seek a fifth vote for a narrow holding, presumably from Roberts. All the while, Sotomayor worked on the fallback option: a partial dissent chastising the majority’s overreach. When Kagan and Jackson realized they couldn’t nab a fifth vote for the narrow position, they teamed up with Sotomayor, making a few changes and signing their names as authors in a show of force and agreement within the progressive bloc. (The description of presidential elections as “a great and glorious thing,” for example, sounds like the work of Kagan or Jackson, not Sotomayor.)
Broaden the scope of the potential negotiations, though, and things get more interesting. After oral arguments, many smart court watchers mused that the justices might reach a grand bargain that tied this case to a separate dispute involving Trump’s claim of immunity from criminal prosecution for election subversion. The liberal justices might agree to keep Trump on the ballot if the court also refused to take up the immunity case. There would be an exchange of votes: Trump stays on the ballot but gets no immunity from prosecution. He could run in all 50 states but would also have to contend with a criminal trial that would likely conclude before the election.
That, of course, didn’t happen: The court sided with Trump on the ballot issue and took up his immunity case last week on a less-than-speedy timeline, helping him run out the clock to November. But maybe Kagan and Jackson were working behind the scenes to strike this grand bargain. Maybe they were withholding their votes in both cases, scrambling to find two conservative justices who would rule narrowly for Trump in one case and swiftly against him in the other. If so, that didn’t happen. But it would still make sense for Kagan and Jackson to withhold their votes in both cases until they got confirmation that no compromise lay on the horizon in either dispute.
Then there is the least interesting possibility: that Sotomayor’s opinion was going to be a partial dissent until Roberts and Barrett prevailed upon her to call it a concurrence—in a bid to look unanimous and “turn the national temperature down” (in Barrett’s words). It’s frankly difficult to see Sotomayor, an independent-minded and principled jurist, buying into this stratagem if she got nothing out of it. And this theory doesn’t explain why the other two liberals signed on as authors apparently so late in the game.
But there is always another bargain to seek, another compromise to pursue. Who knows what these three justices might have received in exchange for removing the word dissent from this opinion. Maybe they needed to call the opinion a concurrence to wrench a separate opinion out of Barrett, one she might not have offered otherwise, criticizing the majority. Barrett strived to frame the outcome as a reflection of friendly unanimity; perhaps she threatened to paper over her disagreement unless the liberals dropped the word dissent to keep up the facade of cross-ideological agreement. Or maybe Barrett was on the fence about whether to grant Trump a full stay in his immunity case and push the case onto next term’s docket, instead of hearing it on a marginally expedited basis this term. If so, perhaps the “concurrence” language was the price of her vote there. Whatever the liberals were able, or not, to eke out of the conservative justices, it appears to have been thin gruel indeed.
Such guesswork is ultimately somewhat of a fool’s errand, but it’s irresistible when the Supreme Court leaves such a big clue dangling in the metadata. (I asked the court for comment on Monday but have not yet received a response.) Whatever happened behind the scenes, the final product is plenty fractured on its own terms. The liberal justices can call their opinion whatever they want. At the end of the day, it reads exactly like what it is: a furious and fearful dissent.