The Liberal Justices Backed Down From the Fight
The Supreme Court’s decision to insulate Donald Trump from legal consequences for January 6 didn’t have to be unanimous. Why was it?
Just a few minutes into oral argument in Trump v. Colorado last month, it was apparent that the Supreme Court had no intention of enforcing the Disqualification Clause of the Fourteenth Amendment to keep Donald Trump off the 2024 presidential ballot. The only real question was about which legal theory the justices would deploy to ensure that Trump, the first U.S. president to foment a deadly insurrection against the government he led, would not face any consequences for his actions.
On Monday, the Court delivered its answer in a sparse opinion designated as per curiam, which means that its conclusions are attributable to the Court, rather than to any one justice or collection of justices. Under Section 3 of the Fourteenth Amendment, the Anderson opinion states, states lack the power to bar candidates from holding federal office. It helpfully notes that Colorado could bar Trump from running for state office, if for some reason he felt like buying a weed shop in Aspen and launching a bid for a seat on the University of Colorado Board of Regents. But because allowing states to use the Disqualification Clause to exclude presidential candidates from their ballots could yield inconsistent results in elections of national importance, the Court concludes, the law mustn’t allow states to go any further.
“An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times,” the unnamed author, whom I would wager one hundred American dollars is Chief Justice John Roberts, writes. “Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”
The opinion in Anderson does not discount the theoretical possibility of enforcing Section 3 against someone, sometime. But it takes care to ensure that, practically speaking, it will probably never happen to anyone. Section 3, the Court concludes, is not “self-executing”; instead, Congress must pass a law in order to give it effect. This functionally puts Trump beyond the reach of the Disqualification Clause: Because Congress is safely in Republican hands, and Senate Democrats remain more afraid of the hypothetical consequences of spiking the filibuster than they are of the real-world consequences of failing to do so, he can run for president knowing that the people who are supposed to protect democracy from budding despots instead wrote him an insurrectionist hall pass. (The opinion also warns that any such law would “of course” be subject to judicial review, making clear that even if Congress were to pass a law applying the Disqualification Clause to Trump, the justices reserve the opportunity to stuff that law in the garbage.)
Though the outcome in Anderson was a foregone conclusion, it remained to be seen how much incredulous dissent it would elicit. The answer, unfortunately, is basically none. After including a few turns of phrase that are recognizable as barbs only by appellate lawyers with an unfortunate affinity for Supreme Court palace intrigue, even the liberal justices, for some godforsaken reason, agreed to help write part of the Constitution out of existence.
In a separate opinion, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson agreed with the Court’s conclusion that Colorado cannot unilaterally disqualify Trump from the ballot. Yet this, they say, would be enough to resolve the case, without any need for the majority’s sweeping conclusions about the necessity of special congressional action to punish (or not punish) future coup attempters. Quoting Roberts’s maxim in Dobbs that “if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” the liberals accuse the Court of “depart[ing] from that vital principle” to “decide novel constitutional questions to insulate this Court and petitioner from future controversy.” This is the closest they get to stating what is plainly going on: Five Republican justices are taking every precaution necessary to maximize the presumptive Republican nominee’s odds at taking the White House in eight months.
The liberals would be correct to characterize their colleagues as breathtakingly full of shit, and their opinion reads for all the world like, at the very least, a partial dissent: Throughout, it refers to the nominally per curiam decision as a “majority” written by “five justices,” rhetorical conventions that sort of belie the notion that there is full agreement here. Yet for some reason, the liberals style their opinion only as a “concurrence in the judgment,” thus preserving the formal unanimity of Donald Trump’s de facto exoneration.
For anyone who hopes for more from the liberal justices than occasional clapping hand-emoji zingers, this choice is as disappointing as it is baffling, especially since there is evidence that they considered doing things differently. As Slate’s Mark Joseph Stern observed, the metadata of the PDF posted on the Court’s website suggests that at one point, their opinion was a partial dissent, and written by Sotomayor alone. Sometime after when she circulated a draft among her colleagues and before Monday morning, the two other liberals signed on, and the three of them, for reasons we will not know until Joan Biskupic publishes her next dishy Supreme Court book, elected to toe the line. (If you are reading this on your law firm computer, remember this lesson next time your email client reminds you to scrub metadata before sending attached files to opposing counsel.)
In a partial concurrence, Justice Amy Coney Barrett echoed the liberals’ argument that the Court’s per-curiam-but-not opinion goes further than it needs to, and correctly notes that ordinarily, the “majority’s choice of a different path” would be grounds for a dissent. But not so this time, she says, because “writings on the Court should turn the national temperature down, not up” during “the volatile season of a Presidential election,” which, she scolds, is “not the time to amplify disagreement with stridency.” This awkward conclusion braids Barrett’s partisan preferences with the performative collegiality that permeates the legal profession: On the one hand, the opinion protecting the president who appointed me to the Supreme Court is wrong. On the other, I am too much of a coward to say anything more about it.
In a partial concurrence, Justice Amy Coney Barrett echoed the liberals’ argument that the Court’s per-curiam-but-not opinion goes further than it needs to, and correctly notes that ordinarily, the “majority’s choice of a different path” would be grounds for a dissent. But not so this time, she says, because “writings on the Court should turn the national temperature down, not up” during “the volatile season of a Presidential election,” which, she scolds, is “not the time to amplify disagreement with stridency.” This awkward conclusion braids Barrett’s partisan preferences with the performative collegiality that permeates the legal profession: On the one hand, the opinion protecting the president who appointed me to the Supreme Court is wrong. On the other, I am too much of a coward to say anything more about it.
This is obviously a rough time to be a liberal justice, whose two principal tasks are chronicling the accelerating erosion of American democracy and writing somber obituaries for the civil rights they are unable to save. I get that this is thankless work, but that does not obviate the obligation to do it. By repackaging a (partial) dissent as something less, Sotomayor, Kagan, and Jackson simultaneously handed Trump the result he needed and allowed the Republican justices to frame the Court as unified in its principled defense of representative democracy. If the liberals had set out to deliver headlines that made the Supreme Court look the best and John Roberts feel the happiest, I am not sure what they would have done differently.
The collection of opinions in Anderson is the work product of a Court whose members are clearly aware that their reputations are in the toilet. The assertion with which Barrett wraps her opinion—that the justices’ differences are “far less important” than their putative unanimity, which “is the message Americans should take home”—reads less like legal analysis than a maudlin plea from a justice who knows exactly how little credibility the institution has left. Sotomayor, Kagan, and Jackson could have pressed this argument, exposing the Court as a rubber stamp for the Republican Party. Instead, they chose to run cover for it.
As always, you can find everything we publish at ballsandstrikes.org, or follow us on Twitter at @ballsstrikes, or get in touch by emailing contact@ballsandstrikes.org. Thanks for reading.
This Week In Balls & Strikes
The Supreme Court Official Picks Trump Over the Constitution, Madiba Dennie
The rules are different when the conservative supermajority’s preferred candidate is asking for an insurrection hall pass.
The Legal System Never Took Poor People’s Rights Seriously, Austin Field
Classical legal liberalism’s demand of equal treatment for rich and poor just means that the poor always end up worse off.
How the Conservative Legal Movement Is Waging a War on Sex, Madiba Dennie
Activists spent decades trying to get a Supreme Court that would overturn Roe v. Wade. Now, they have bigger, weirder ambitions.
This Week In Other Stuff We Appreciated
The Supreme Court Is Not Up to the Challenge, Quinta Jurecic, The Atlantic
“[The liberal justices] 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.”
Today’s Supreme Court Is a Threat to Democracy—But Activists Plan to Fight Back, Paul Rosenberg, Salon
A new online lecture series aims to lay the groundwork for fundamental Court (and court) reform.
When the Supreme Court Rules on Colorado’s Ballot, Pay Attention to What It Doesn’t Say, Ian Bassin and Dahlia Lithwick, Slate
On establishment legal media’s stubborn refusal to look beyond the alignment of nine votes.
This Week In Obscure Photos of Supreme Court Justices On Getty Images
