Notice And Comment: The Supreme Court Ruling In Trump v. Anderson
The Court unanimously ruled that Donald Trump can remain on the ballot in Colorado.
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So, readers, what do we think of this morning’s Supreme Court decision in Trump v. Anderson? This is a Notice and Comment post, so please share your observations in the comments to this post (which are open to all readers, not just paid subscribers).
I’ll kick things off by pointing out what I got right and what I got wrong in terms of predictions (which can be found in a pair of posts, a Notice and Comment post and a Judicial Notice post).
Outcome: I correctly predicted that the Court would rule in favor of keeping Donald Trump on the ballot in Colorado (no great accomplishment, in light of the tenor of the oral arguments). In a concise, 13-page opinion, the Court held as follows:
Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the Fourteenth Amendment] against federal officeholders and candidates, we reverse.
The Court further held that Congress must do so by enacting legislation under Section 5 of the Fourteenth Amendment to implement Section 3—i.e., Section 3 is not “self-executing.”
Margin: I correctly predicted “a lopsided vote, near-unanimous if not unanimous.” The Court wound up unanimous in result, 9-0 on the proposition that Colorado cannot keep Trump off the ballot based on Section 3.
But only five justices joined the opinion of the Court in full. Justice Amy Coney Barrett concurred in part and concurred in the judgment, and the three liberal justices—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—wrote a joint concurrence in the judgment. These four justices would have decided less than what the majority did—and, most importantly, would have left open the possibility of other ways to enforce Section 3 besides legislation under Section 5.
Authorship: I incorrectly predicted that the opinion would be written by Chief Justice John Roberts, given its importance. But the Court instead issued its opinion “per curiam” or “by the Court,” perhaps to emphasize (1) the high degree of unity of the justices or (2) the straightforward nature of the question, at least in the eyes of the justices (it’s not an easy question in the eyes of many constitutional scholars).
Another plus: a per curiam opinion means that no individual justice will get attacked for writing what everyone knew would be a very controversial opinion.
Timing: I correctly predicted that the justices would rule before Super Tuesday—i.e., March 5, which is tomorrow—when Colorado and 14 other states hold their presidential primaries.
Reasoning: I correctly predicted that the Court would hold that in the absence of action by Congress, as provided for in Section 5, an individual state lacks the power to bar a candidate for federal office from the ballot.
A holding this narrow would have left open the possibility of what I described as a “nightmare scenario,” which Jason Murray, counsel for the Anderson plaintiffs, raised at oral argument:
[The Section 3 issue] could come back with a vengeance because, ultimately, members of Congress would or may have to make the determination after a presidential election, if President Trump wins, about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act.
I incorrectly predicted that the justices would nip this in the bud by tacking on what could be called a “substantive” rather than “procedural” argument, such as (1) the president is not an “officer of the United States” within the meaning of Section 3 or (2) there was no insurrection on January 6 or, if there was, Trump did not “engage[] in” it. But these arguments are complex—and addressing the second one, the “insurrection” question, would have dragged the Court into very controversial terrain. So the justices didn’t go there.
Instead, the majority found a different way to avoid this issue coming back to One First Street, as explained in the liberals’ concurrence:
Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement.
Two alternative enforcement methods that are now off the table, after today’s opinion, are (1) federal judicial enforcement, i.e., by a federal (rather than state) judge applying Section 3; and (2) Congress enforcing Section 3 by refusing to count Electoral College votes cast for an insurrectionist (whether under the Electoral Count Reform Act or Congress’s general constitutional powers with respect to presidential elections).
So that’s what I got right and what I got wrong. What about you? What surprised you—or didn’t surprise you—about this morning’s opinion? I look forward to your thoughts, in the comments.
[UPDATE (12:36 p.m.): I’ve kicked things off by placing in the comments a few observations that I didn’t want to clutter the main post with.]
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I'll kick things off with some additional observations that I didn't want to clutter my original post with:
1. Justice Barrett would not have addressed "the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced." So she joined Parts I and II–B of the Court’s opinion, but not the rest.
She could simply have stated that she joined only those Parts, but she went a bit further:
"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."
Was her reference to "amplify[ing] disagreement with stridency" a dig at the liberals' concurrence?
2. In their concurrence, the liberal justices (unsurprisingly) expressed concern about the holding that Section 3 isn't self-executing:
"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. Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3."
I do think it's a fair characterization to say that the majority has created "a special rule" for Section 3. So critics of today's ruling might argue that it's a little "Bush v. Gore"-ish, in terms of "here's how we want this case to come out, but don't extend its logic into other areas of law."
3. Finally, for the Con Law nerds among you who have been viewing this case through the lens of Griffin's Case, it seems to me that the Court just made that opinion—which wasn't a precedent of the Supreme Court, since it was written by Chief Justice Salmon Chase sitting as a circuit judge—a SCOTUS precedent.
The liberals' concurrence would have left open the possibility of "judicial enforcement of [Section 3], such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score."
In terms of its potential practical complications, allowing judicial enforcement in this manner—which is what Griffin's Case was so afraid of—could get very, very messy.
As Trump lawyer Jonathan Mitchell argued before the Court, it could raise the specter of lawsuits by parties who were adversely affected by executive action taken by the Trump Administration after January 6. These parties would argue that the Administration's actions were invalid because, after January 6, Trump wasn't entitled to hold office because he had engaged in insurrection.