The Court was deeply divided about the five-justice majority’s decision to go beyond the state power issue.
It was important for the Supreme Court to speak with one voice in batting down the theory that states are empowered by Section 3 of the 14th Amendment to remove alleged insurrectionists from the ballot by their own ad hoc procedures. The justices have done that. But don’t be fooled by the kumbaya coverage. Trump v. Anderson is a 5–4 decision.
In essence, a majority consisting of five of the Court’s six conservative justices (Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) went beyond the question about state power and ruled that Section 3 can only be enforced by congressional legislation under Section 5 of the 14th Amendment, and that the only existing statute along those lines is the penal law against insurrection, Section 2383 of the federal code.
What that means is that if Donald Trump were to win the presidential election, congressional Democrats would not be able — in the next January 6 joint session of Congress — to refuse to ratify his victory on the grounds that he is an insurrectionist.
Under the Court’s holding, it is now a prerequisite to enforcement of the Section 3 disqualification that a person must have been convicted under the insurrection statute. Congress could change this by new legislation, but there is no chance of that happening in this deeply divided era.
Justice Barrett did not join this part of the Court’s per curiam opinion. One does not get the sense that she necessarily disagrees with it. Hers is a “sufficient unto the day” take — i.e., having decided a fraught issue, there is no need to decide a related fraught issue. By her lights, it was enough to hold that the states may not do what Colorado tried to do.
The three progressive justices (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) clearly dissent. They do not buy into the illusion that this is a 9–0 per curiam, a court speaking unanimously. They refer to the opinion of the five justices as “the majority,” not the “per curiam.” And they do not mince words about exactly what their colleagues have done: The “majority” of “five justices . . . decide novel constitutional questions to insulate this court and petitioner [Trump] from future controversy.”
This is true. Congressional Democrats want the option of seeking to disqualify Trump post-election and pre-inauguration under Section 3. That would have put the Supreme Court squarely in the position of deciding whether he could become president — the media-Democrat complex would have declaimed that it was the conservative justices, not the voters, who elected Trump.
A majority of the Roberts Court wanted no part of such a scenario. The incidental beneficiary is Trump.
I happen to believe that this is the correct result. It is for Congress to enforce the Section 3 disqualification through Section 5, and Congress has done so — or, more accurately, all that remains of what Congress did after the 14th Amendment was adopted in the insurrection crime in federal law.
I also believe that Justice Barrett, for admirable reasons, is too worried about the public perception of the Court: “In my judgment,” she writes, “this is not the time to amplify disagreement with stridency.” Perhaps she’s right. I don’t believe that Trump is going to win the election, so perhaps there would have been no need to grapple with Section 3 post-election, and the Court could have avoided the controversy it has created by exercising restraint and deciding only the state power issue. But if Trump did win, and a five-justice majority had not done what it did today, Justice Barrett would have seen stridency and division like she’d never seen before if the Court had to decide another Section 3 case with control of the White House hanging in the balance.
The majority is right. But let’s be real, it is a majority. This is a 5–4 ruling.