In reversing a decision by the Colorado Supreme Court that disqualified former President Donald Trump from that state’s ballot, the U.S. Supreme Court spoke with one voice on a matter of great legal and political importance — until it didn’t. This was the moment for the justices to demonstrate that they are not lawmakers pushing a policy agenda, but rather judges resolving disputes. However, despite their agreement on the outcome of this case — that individual states cannot kick Trump off their ballots — justices just couldn’t keep it together.
These fracture lines do nothing to bolster the legitimacy of the court.
The liberal justices issued a separate concurring opinion ultimately rebuking the conservative majority for going too far and answering legal questions that weren’t asked. These fracture lines do nothing to bolster the legitimacy of the court.
Section 3 of the 14th Amendment bars previous officeholders who engaged in an insurrection from once again serving in certain government posts. It was designed to prevent public officials who’d fought for the Confederacy and tried to destroy our government from serving in our government. Section 3 took on a new significance in the wake of Jan. 6, 2021. Some states used that section to conclude that Trump, due to his involvement in the insurrection at the U.S. Capitol, cannot appear on their election ballot. On Monday morning, the Supreme Court resoundingly disapproved of those interpretations.
The court issued its decision as a per curiam opinion, that is, one attributed to the entire court and not a specific justice.
A separate opinion written by Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor caused Justice Amy Coney Barrett to write her own concurring opinion. Barrett’s opinion both espoused agreement with the liberal justices that the majority went further than it needed to, but complained that because the liberal justices wrote separately, they fractured the court’s attempt at unanimity.
Barrett’s concerns are well founded. The liberal justices couldn’t help but write a separate opinion to voice their disagreement with the breadth of the majority’s position. Presumably, the liberals, outnumbered on the court 3 to 6, couldn’t convince any conservative justice other than Barrett to draft a narrower opinion hewing specifically to the question presented. And their concurring opinion fell flat in clearly articulating why the majority was wrong to provide guidance as to how Section 3 can be implemented, and exactly how, in their view, the majority protects Trump from “future controversy.” If, as many of us suspect, the liberal justices’ fear is that this opinion will prevent Congress from declining to certify an Electoral College vote won by an insurrectionist, it should have said so specifically. This is a case that all Americans should be able to read and understand.
In fairness, however, the conservative justices couldn’t pull themselves back from writing an opinion that was largely advisory. The bottom line is that the court missed an opportunity to show us that they can reach an agreement on the most consequential constitutional questions of our times.
To explain why the court’s apparent agreement on this big constitutional question fell apart, we need to dive into the opinions.
In the per curiam opinion, which is the controlling opinion, the court concluded that states cannot, on their own, enforce Section 3 of the 14th Amendment against Trump, a candidate for the presidency. The court concluded that “nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.” In other words: The states lack the power to kick federal officeholders or candidates off election ballots without more guidance from the federal government.
The court missed an opportunity to show us that they can reach an agreement on the most consequential constitutional questions of our times.
The opinion then went further. It found that Section 3 of the 14th Amendment gives Congress, not the states, the power to enforce that disqualification provision by passing a law. What kind of law? Essentially, the court found that before states can take any action under Section 3, Congress has to pass enabling legislation telling states exactly when they can and cannot disqualify federal candidates from election ballots.
The court’s biggest concern about allowing states to go it alone in this area can be boiled down to one word: “patchwork.” The court worried, as the justices said during oral arguments, that leaving this decision to the states could lead to different conclusions about a presidential candidate’s eligibility in different states and that this, in turn, could lead to “chaos,” particularly for voters who would not know if their votes counted. The concurring opinion by the liberal justices wanted the per curiam opinion to stop at the top-line takeaway. They did not want the majority to opine “on which federal actors can enforce Section 3, and how they must do so.” For the liberal justices, there was no need for the majority to say that the only way to disqualify a federal candidate for engaging in an insurrection is for Congress to first pass “implementing legislation.” They argued that the per curiam opinion wrongly “shuts the door on other potential means of federal enforcement.” While it isn’t clear from their concurring opinion, my best guess is that the liberal justices are concerned that the per curiam opinion would hamstring Congress’ power in the wake of a presidential election. For instance, the three liberals are likely concerned that the majority’s decision would prevent Congress from refusing to certify the Electoral College vote if an insurrectionist wins at the ballot box. It is disappointing that the members of the court were unable to reconcile their differences. This is a court plagued by ethical scandals and questions of legitimacy, a court tearing through precedent and espousing a conservative vision of the law. This was the moment for the court to speak with one voice. The court understood that when it handed down its decision in Brown v. Board in 1954. It did not in Bush v. Gore, where a slim conservative majority of the court handed the presidential election to George W. Bush, over the objections of the liberal minority. This is a court that, fairly or not, could not sing with one voice for more than a stanza. The cracks showed. Justice Barrett’s takeaway is mine as well. “All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
