The March 4 United States Supreme Court decision that Donald Trump could not be disqualified under the terms of Section 3 of the 14th Amendment was a win for Trump but a loss for the Court itself. In a case of monumental importance, the Court failed to provide the kind of well-reasoned opinion that will stand the test of time, and it failed to marshal a genuine consensus among the Justices.
This result suggests that Chief Justice John Roberts was unable to do what he supposedly most cares about, namely protect the prestige of the Court he leads and produce minimalist decisions. He could not do what other Chief Justices had done in cases like Brown v. Board of Education and United States v. Nixon when they led their Courts to genuinely unanimous decisions.
Looking at the decision in Trump v. Anderson suggests that the Court was unanimous but, at the same time, deeply divided. Its unanimity appears shallow; its divisions are deep and intense.
While scholars have long recognized that unanimity does not necessarily signal real consensus, the current Court could hardly afford to appear divided along partisan lines in a deeply political case, a case in which the fate of the republic might have been sealed. It could hardly afford to do so at a time when public confidence in the Court is at an all-time low.
Signs that the Justices were anxious about this situation appear in several ways in the Trump v. Anderson decision. First and most importantly was the Court’s choice to issue a per curiam opinion.
As Professor Ira Robbins explains, “The author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge.” Traditionally, Robbins argues, “the per curiam was used to signal that a case was uncontroversial, obvious, and did not require a substantial opinion.”
Importantly, issuing a per curiam decision is meant to be a sign of “the unity among the Justices that its name connotes.”
Recently, per curiam decisions have become, Robbins says, “a convenient tool for the Supreme Court in deciding controversial cases, because ‘[w]ith no Justice signing the opinion, there was no individual to be blamed for evading the tough questions.’”
In a different marker of the Court’s anxiety about seeming divided along partisan lines, at the end of the per curiam opinion, the Court states the obvious, “All nine Members of the Court agree” that Colorado’s decision to disqualify Trump “cannot stand.”
Justice Amy Comey Barrett registered that same anxiety in her concurring opinion. Having laid out her own doubts about parts of the per curiam opinion, she wrote, “[O]ur differences are far less important than our unanimity.” She also wrote: “All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
But saying so does not make it so.
In fact, the effort to appear united on the disqualification issue was undone by what my colleague Lawrence Douglas once dubbed a kind of “scathing concurrence” from the court’s three liberal Justices. Princeton historian Sean Wilentz says that in their “dissenting-concurrence,” Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson agreed with their colleagues that Trump should not be disqualified “while demolishing the majority’s main argument.”
Wilentz calls the Court to account for what he labels the “brazenness with which the majority exercised its power to reach a decision in flagrant contradiction of the Constitution’s plain meaning.” The fact that it did so on such an important case, in his view, “only underscores how corrupt the Court’s majority has become.”
The per curiam opinion was unanimous on the question of whether individual states (like Colorado and Maine) could enforce Section 3 of the 14th Amendment and disqualify Donald Trump from appearing on the ballot as a candidate for President. As the Court said, individual states have the authority “to disqualify persons holding or attempting to hold state office” but not “federal offices, especially the Presidency.”
This ruling is odd since the administration of elections and determination of eligibility to appear on the ballot, in other instances, are left to the states to decide. It also, as Wilenz points out, “defies Article II of the Constitution, which gives the states authority over selecting electors for the presidency. Anyone who wishes to be a candidate for the presidency must…meet numerous state requirements.”
The Court was concerned that leaving the disqualification question for states to decide would create a “patchwork” of inconsistent decisions and what it characterized as “chaos.”
If the Court really prized unanimity, and if Roberts had done his job, the opinion would have stopped there. But it did not.
As a result, the veneer of unanimity unraveled. A five-Justice majority found that the Disqualification Clause was not self-executing. “Responsibility for enforcing Section 3 against federal officeholders and candidates,” they said, “rests with Congress not the states.” Disqualification, in their view, requires authorizing legislation from Congress.
That was a bridge too far even for Justice Barrett, who generally sides with the Court’s other conservative Justices. As Justice Barrett wrote, “The suit…does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
Justices Sotomayor, Kagan, and Jackson went even further in showing their displeasure about what the five-Justice majority had done. They pointed out the hypocrisy in their colleagues’ prior advocacy of judicial restraint but their willingness to depart from it in deciding the Trump disqualification case.
“In a sensitive case crying out for judicial restraint,” the three liberal justices wrote, the majority “abandons that course” and “creates a special rule for the insurrection disability in section 3,” for which it can find “next to no support” in the Constitution.
In so doing, “the majority shuts the door and other potential means of federal enforcement” and “decides momentous and difficult issues unnecessarily.”
And, in what The Washington Post’s Aaron Blake suggests is the most telling and disturbing line in their opinion, Sotomayor, Kagan, and Jackson point out that the Court’s new and broad rule for Section 3 will “insulate this Court and petitioner from future controversy.”
As Blake notes, “The liberal justices were saying their colleagues went on to decide ‘novel’ issues ‘to insulate’ Trump.” They are “‘calling the majority politically motivated.’”
Scratch the surface, and raw partisanship shines through what the five-Justice majority did to protect Donald Trump, who the liberals imply fits into the category of an “oath breaking insurrectionist,” a phrase they use repeatedly.
In the end, it is not surprising that Chief Justice Roberts failed to marshal the Court to ensure that Trump will not be challenged in the future or to achieve genuine unity. But the real price of his failure, and the strategy that produced it, will be paid by the Court itself in a further erosion of its reputation for impartiality and its standing with the American people.
