At the top of the U.S. Supreme Court's opinion in Trump v. Anderson is the phrase “per curiam.” This is a short and fancy way of saying “by unanimous decision of the court.” However, that characterization is somewhat modified by background noise from two different opinions.
Yes, all nine justices agreed that the Colorado Supreme Court's decision cannot prevent former President Donald Trump from accessing the state's presidential primary. The majority agrees that Section 3 of the Fourteenth Amendment, which removes candidates who commit rebellion from office, can only be enforced by an authorizing act of Congress.
But the unanimous opinion is actually three opinions. The first ruling, about 13 pages long, declares that all nine members of the high court “agree with the finding” that state courts cannot deny voting access to candidates for federal office; Our colleagues, writing separately, further agree with many of the views.” The reason. ”
The second opinion, written by Justice Amy Coney Barrett, a Republican presidential appointee, is just two paragraphs long. She opines that the court could have simply held that states cannot bar candidates for federal office and stopped there.
The third 13-paragraph opinion was written by three Democratic presidential appointees: Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. They agree with Barrett's minimal advice to keep decisions simple and answer only the most essential questions to handle the case.
They take particular issue with the majority's assertion that Section 3 of the Fourteenth Amendment can only be enforced by law enacted by Congress. The majority argues that it rests on Section 5 of the Fourteenth Amendment, which gives Congress “the power to enforce this article by appropriate legislation.” In other words, the majority believes that without an enforcement law on the books, there is no basis to challenge an alleged insurgent's holding of public office.
To be fair, the third opinion should have been labeled “Partly Agree, Partly Disagree.” Because it is certainly not a unanimous chorus behind the majority's argument.
Opponents also have valid points. Section 3 as well as Section 5, which authorizes Congress to enact appropriate laws to enforce the Fourteenth Amendment, are voluntary and not mandatory. The same provision appears as a formula at the end of six other of his constitutional amendments. A minority of the court held that many of the rights and obligations of the Fourteenth Amendment (and other amendments) are “self-enforcing,” meaning they are ostensibly enforceable and “not dependent upon any type of remedy.” Pointed out.
The minority justices' greatest concern is that unless Congress establishes standards and procedures for invoking and enforcing Article III's enforcement provisions, the Court will be bogged down by the majority opinion.
The minority dissent begs the question: Are there any off-the-shelf “self-executing” interpretations of Article 3 that can be incorporated to fill this gap? This is questionable because there is no common consensus on what constitutes an insurrection or insurrectionist, what “engagement” means, or even whether presidential candidates are subject to Section 3. The office of president is not specifically mentioned in that section (although presidential electors and vice presidential electors are).
The court's minority particularly laments that the lack of enforcement law precludes the judiciary from any action to enforce or remove the presumption of guilt. They wrote that the majority's opinion “precludes judicial enforcement of that provision, as would occur if a party were prosecuted by an insurgent and filed a defense in that regard.”
In perhaps the cruellest cut of all, the minority justices wrote that “by resolving these and other questions, the majority seeks to distance all alleged insurrectionists from future challenges to federal office.” claims. Who would have imagined that the Supreme Court would be accused by some of its members of being an insurrectionist protection league?
The minority justices cited Justice Stephen Breyer's dissenting opinion in the 2000 Florida election case Bush v. Gore, saying, “What the court is doing today, the court should undo.'' “There was,” he said. The court's minority argued that by reaching out “to resolve the Article III issue before us,” the court would “prevent any future efforts to disqualify the presidential nominee.” ” I agree with the sentiment of the Trump ruling. [in] This is a sensitive case that requires judicial restraint.”
If you look at the overall tone of this concurrence/dissent, the minority's biggest lament is that the majority opinion clearly still wants to be involved, and yet, along with the lower federal courts, the It gives the impression that the court has been pushed off the stage. Despite Judge Breyer's warning to the contrary in 2000.
Don Wolfensberger is a 28-year veteran of Congressional staff, ultimately serving as chief of staff on the House Rules Committee. He is the author of Parliament and the People: Deliberative Democracy in Courts (2000) and Changing Parliamentary Culture: From Fair Play to Power Play (2018).
Copyright 2024 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.