The Supreme Court ruled unanimously last week on Trump v. Anderson in a per curium (by the court) opinion to strike down Colorado’s move to bar Donald Trump from the state’s presidential primary ballot. Jena Griswold, Colorado’s secretary of state, with the approval of the state’s Supreme Court, had removed Trump from the ballot, claiming that he had participated in an insurrection against the government and was thus disqualified from office under Section 3 (the insurrection clause) of the Fourteenth Amendment.
In reversing that ruling, the Supreme Court held that states do not possess the authority to decide upon the eligibility of candidates for federal office under either the Fourteenth Amendment or under any other clause of the Constitution. The court went on to say that only Congress has the authority to enforce the insurrection clause. This aspect of the ruling provoked a heated concurrence from the three liberal members of the court—Justices Sotomayor, Kagan, and Jackson—who asserted that the insurrection clause might be enforced via other federal avenues, such as prosecutions or lawsuits.
Notwithstanding that concurrence, the per curium opinion emphasized the unanimity of the decision, as all nine justices agreed that Colorado lacked the authority to remove Trump from the ballot. The court declared in its opinion that “The judgment of the Colorado Supreme Court therefore cannot stand. All nine members of the court agree with that result.” Chief Justice Roberts, the likely author of the opinion, underscored that agreement in order to neutralize critics who have claimed that the court’s decisions are political or biased in favor of Trump and conservatives.
Along these lines, Justice Coney Barrett drafted a brief concurrence of her own, the main point of which was to rebuke her liberal colleagues for calling attention to disagreements among the justices. As she wrote:
In my judgment, this is not the time to amplify disagreement with stridency. 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.
This was an unusual statement—censuring her colleagues for “stridency”; suggesting that the court has the capacity to turn down the nation’s political temperature; and calling upon observers to emphasize the unanimity of the judgment and to ignore the concurrence of her colleagues.
The per curium went well out of its way to emphasize consensus and unanimity on the court. This is not new: in the past the court has often issued unanimous opinion in highly charged cases to emphasize the constitutional (rather than political) foundations of its decisions. Chief Justice Warren engineered a unanimous decision in Brown v. Board of Education (1954) as did Chief Justice Burger in United States v. Nixon (1974), both high profile cases with far-reaching political implications. But such decisions are rare, and increasingly so in the politicized environment in which the court operates today.
The quest for consensus has taken on new urgency in response to heated attacks that have been thrown at the conservative justices in recent years, as well as the accompanying questions that have been raised in Democratic circles about the legitimacy of the Supreme Court. Democrats have not only criticized the institution, but also have called for measures to pack the court. Those attacks appear to have eroded public support for the institution, at least in left-wing precincts in the media and law schools, where the criticisms have been loud and persistent. One can understand the new frustration in those circles: leftists have not had to deal with a conservative-leaning court since the 1930s.
Some justices are acutely sensitive to these attacks, and for good reason. A would-be assassin was arrested a few years ago outside the home of Justice Kavanaugh; demonstrators have tried to intimidate justices by setting up camp outside their homes, with little discouragement from the Justice Department. These hostilities have grown in recent years in the wake of the Dobbs decision in 2022 and are now reaching crescendo levels in the midst of the Trump prosecutions and the presidential-election campaign. The court is now caught in the midst of a political crossfire of near-unprecedented dimensions. Democrats want Trump out; Republicans want him in. No one can blame the justices for seeking a way out.
But the Colorado case illustrates the difficulties the court faces in its quest for consensus. While the per curium opinion emphasized consensus, the concurring opinion by the liberals simultaneously emphasized the sharp divisions among the justices. Justice Coney Barrett’s concurrence may have expressed a form of wishful thinking on the court: that the justices should appear to be united despite widespread awareness that they are not. In any case, the per curium gambit failed to conceal the real divisions among the justices. If the goal was consensus, then it mostly failed: the concurrence from the liberals is a full-throated attack on the majority. Justice Coney Barrett was not wrong to call it “strident.”
It is a good question whether in this environment the quest for consensus still makes sense. If the chief justice could not organize a consensus on the Colorado case, then he is unlikely to succeed in the more difficult and polarizing cases that are coming forward in the spring. Where consensus cannot be achieved, it may be pointless to search for it. That might be the point at which the court has finally arrived.
Against this background, the concurrence of Justices Sotomayor, Kagan, and Jackson is especially worthy of attention. In just about any other circumstance, their concurrence would have been called a “dissent” and the per curium opinion the decision of a divided court. It brings to mind Justice Frankfurter’s concurrence in the court’s per curium opinion in Cooper v. Aaron, a 1958 decision that argued the court’s supremacy against state actions taken in resistance to its desegregation rulings. Justice Frankfurter wrote that the court had gone too far in asserting that it is the sole arbiter of the Constitution—a move that angered Chief Justice Warren because it undermined the appearance of consensus on the court.
As for the Colorado case, it is possible, maybe even likely, that Chief Justice Roberts called upon his liberal colleagues to join the per curium opinion in order to reassure the public in regard to political differences on the court. He might have tailored the per curium opinion to avoid controversial questions about whether the events of January 6 amounted to an insurrection or whether President Trump encouraged or participated in them. The opinion is silent on these points—perhaps as a concession to the liberal justices. It appears that, in view of their concurrence, this gambit failed as well.
The liberal justices wrote that while they agreed with the outcome regarding the Colorado ballot, they disagreed with the conservative majority’s claim that enforcement of Section 3 must rest with Congress via a statute narrowly applied to issues of insurrection and disqualification. They argued that the court, though correct in knocking out the Colorado ruling, should have stopped at that point without going into the mechanism by which Section 3 should be enforced: the court did not have to enter the enforcement thicket in order to strike down the Colorado ruling. In doing so, the majority foreclosed other reasonable avenues for enforcing Section 3, and thereby went beyond the controversy at hand.
The liberal justices might also have stopped at that point. But they went on in their concurrence to imply that Trump was in fact an “oathbreaking insurrectionist” who could be excluded from the ballot by other means than congressional legislation. This could be done, they wrote, in the judicial arena through federal prosecution in which a party might be convicted of participating in an insurrection; or perhaps through a lawsuit in which a court might rule that an individual is disqualified from the ballot due to participation in an insurrection. It’s worth noting, however, that Trump has not been accused of insurrection in any of the current indictments. Some have suggested that Congress should be allowed to disqualify an “insurrectionist” by refusing to count electoral votes cast on his behalf. The majority opinion forecloses these avenues of enforcement.
The liberals’ concurrence also makes reference to a genuinely bizarre means of judicial enforcement: “such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.” What does that mean? It seems to suggest that, should an “insurrectionist” be elected to the presidency, parties later accused of wrongdoing by the president could defend themselves in court by claiming that laws or regulations approved under his authority are not legitimate. It is a good question what happens then. Could a court then rule that a duly elected president is an “oathbreaking insurrectionist” and is thereby disqualified from holding the office? That would provoke a constitutional crisis of the kind we have not yet seen. As noted, the liberal justices might better have stopped before pontificating on such an extreme scenario.
The justices in the majority, and especially Chief Justice Roberts, may have drafted the opinion while looking ahead to other cases involving the former president. After all, the court has now agreed to hear Trump’s appeal in connection with federal charges that he sought to interfere with the electoral-vote count in Congress on January 6, 2021. That case will be argued in late April, with a decision expected in June. Did the Chief Justice engineer a bargain of some kind with the liberal justices to bring them on board in the Colorado case in exchange for implied concessions in the forthcoming January 6 case against Trump?
That would be in keeping with the strategy by which Roberts has moved from side-to-side in a series of cases, alternately siding with the conservative and liberal blocs, in order to maintain the appearance of consensus on the court. For example, last year he joined the liberals in a voting-rights case against the state of Alabama (Allen vs Milligan) but turned around a few weeks later to side with the conservatives in the racial preferences cases against Harvard University and the University of North Carolina. In 2019, he joined the liberals again (a 5–4 decision) in ruling that a citizenship question could not be included in the 2020 census. Then there was his opinion in 2012 upholding the Affordable Care Act, in which he wrote that Congress could impose an individual mandate to buy health insurance under its taxing and spending powers, when in fact Congress passed the law under the Commerce Clause. Roberts may believe that by throwing a bone to the liberals from time to time he can uphold the appearance of consensus on the court, while protecting it from left-wing critics.
He is wrong about that, as events have proven—most obviously in this concurrence by the three liberal justices in the Colorado case. Their opinion blew apart any such facade of consensus on the court, notwithstanding the unanimous judgment. If Justices Sotomayor, Kagan, and Jackson were interested in consensus and legitimacy, then they would not have implied that Trump is an “oathbreaking insurrectionist,” or suggested that a federal court should be able to oust him from the presidency after an election. They might have stopped, as Justice Coney Barret did, in saying that the majority went too far in limiting enforcement of Section 3 to congressional legislation.
But, as the concurrence showed, they have little interest in promoting consensus on a court controlled by conservatives: they burnish their liberal credentials by disagreeing with the conservative majority, thus providing more fodder for critics, who were more than happy to use it. As for the court’s legitimacy, they probably think they can win it back once they are in the majority. There is little doubt, given their hostile references to Trump, that they would like to knock him off this year’s ballot in one way or another, which will become apparent when the immunity case is argued in April.
Thus, it appears in view of the Colorado case that the time is approaching when maneuvers designed to create an appearance of consensus are unlikely to succeed. The court’s per curium opinion in that case was a fiction: it sought to cover up real divisions among the justices. Critics immediately saw through it. Nor can the court preserve its legitimacy via the Roberts strategy of siding here with the liberals and there with the conservatives, because that approach brings down enmity from all sides, and makes the chief justice look like a political maestro with his finger to the political wind. Chief Justice Roberts is not wrong to worry about the court’s legitimacy—only wrong to think he can maintain it by making concessions to those who will never be mollified.
It is, in addition, far beyond the court’s capacity to “turn down the nation’s political temperature,” as Justice Coney Barrett suggests it can. The Supreme Court is not responsible for today’s heated political environment, and it has no plausible means of cooling it off, either in a decision in the Trump case, or in rulings in other high-profile cases now before it. The Supreme Court has been tempted to try that at times in the past, often with disastrous consequences. In the Dred Scott decision (1857), the court sought to resolve the slavery controversy by ruling unconstitutional the central principle of the Republican Party (that Congress should regulate slavery in the territories). The court tried to desegregate northern schools in the 1960s in a series of rulings requiring cross-district busing, but it tore the country apart in the process, while promoting white flight from the cities (causing even more de facto segregation). The abortion ruling in 1973, announced while state legislatures were wrestling with the issue, created a divisive issue in the country that went on for fifty years—and continues still. The court has great influence—but there are limits to it that the justices must consider.
Now, in the coming months, the court must deal with other controversial cases, one of them featuring President Trump once again, amid its own internal divisions, in a polarized nation, and in the midst of a “volatile season of a presidential election,” as Justice Coney Barrett put it. In addressing the next Trump case, which features his claims of presidential immunity from criminal prosecution, the justices may find that there are no maneuvers available to smooth over differences or to conciliate critics who question the legitimacy of the institution.
The nature of the case does not admit of middling solutions that will satisfy all sides: there is no compromise that will bring together those who want to put Trump in jail and those who want to see him elected president. Both parties see the court as being in a position to decide the election through its decision in this case—and they are not wrong to view it this way. The court was burned in 2000 in Bush v. Gore by appearing to intervene in the outcome of that contest. Another such intervention could easily bruise its appearance of legitimacy beyond repair. The court’s constitutional interest, at least in regard to its legitimacy with the public, lies in finding a way for the voters to decide the election rather than allowing five justices to dictate the outcome. How the justices get there is another question—and a difficult one requiring a high degree of skill and prudence. One thing is likely: it will not involve a bargain with the liberal justices.
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Source: newcriterion.com
