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The Supreme Court allowed Donald Trump to remain on the ballot in Colorado—and every other state—in an opinion on Monday that was less unanimous than it seems on the surface. Every justice agreed that a state cannot unilaterally disqualify a presidential candidate from the ballot because of their participation in an insurrection. But the court split sharply on the question of how, exactly, the constitutional bar against insurrectionists holding office might be enforced in the future.
On a bonus Slate Plus episode of Amicus, Dahlia Lithwick discussed these fierce disagreements, including Justice Amy Coney Barrett’s effort to bridge the divide, with Mark Joseph Stern and Jeremy Stahl. Their conversation has been edited and condensed for clarity.
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Dahlia Lithwick: In both the majority opinion and Justice Amy Coney Barrett’s concurrence, there’s such a vibe here of Y’all, we’re not fighting, we’re OK! Don’t worry about the court. Barrett says: “In my judgment, this is not the time to amplify disagreement with stridency.” And she adds: “Particularly in this circumstance, writings on the court should turn the national temperature down, not up.” There’s this weird, passive-aggressive vibe where everybody is kind of pissed off but telling us over and over again: We’re not fighting! We love each other! The court is working! This sense of performing unity and performing minimalism falls really heavily on the four women of the court in their separate concurrences.
Mark Joseph Stern: Right. It’s boys vs. girls. The girls are doing law. The boys are doing … something that doesn’t look a lot like law!
I guess we should give Barrett some credit for having a flash of integrity here. She did refuse to sign on to the part of the majority opinion that effectively repealed the insurrection clause by saying that only Congress can enforce it. She made it clear that she disagrees with the majority’s decision to, in her words, “address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
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And that is Professor Barrett at her best. She does this from time to time: Last term, she wrote separately, in a case called Samia v. U.S., to criticize Justice Clarence Thomas for manipulating history and representing it incorrectly. I think sometimes Barrett decides that she’s too smart and has too much principle to go along with the conservatives’ BS. But when she reaches that point, she feels the need to apologize for doing it. That’s what she did here, saying, “This is not the time to amplify disagreement with stridency.” By the way, I don’t think there’s anything in the liberals’ opinion that’s strident—that feels like an entirely unwarranted subtweet. And yet here she is, writing separately to say, basically: I think these guys in the majority went way too far, and I don’t really understand why. I find that to be an interesting rhetorical move. She didn’t have to do it. She could have just noted that she concurred with only part of the majority opinion. Instead, she went out of her way to chastise the majority. And yet she wants the country to walk away, thinking, Wow, they really do love each other. I just don’t think she can actually have it both ways.
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The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster
Read More Jeremy Stahl: She really does seem to chastise the progressive justices. And then she tells them what the important part of their concurrence is. She says: “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.” So, forget all the rest of what the progressives wrote in their concurrence; forget their scorching opposition to what five justices did today. What the American people need to accept and appreciate is our unanimity. That’s all that really matters. She delivers this lecture with a little smack in both directions, to the justices on her right and left.
Lithwick: We have to look at this case in the context of the whole rest of the term too. We have the presidential immunity case, which the court is kicking down the road to April. We have abortion and guns and the administrative state and so much else. This is a bonkers term. And the justices keep saying: The one principle we’re all going to agree upon is that we decide cases narrowly as umpires. Nothing to see here! We’re fine! It feels less than persuasive to me.
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I do wanna ask both of you about what didn’t get decided today. After we all spent a very long time trying to decide if the president is an “officer” under Section 3 of the 14th Amendment, the court didn’t touch that. Does it matter?
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Stern: Clearly, the court was uninterested in ultra-technical, semantic, nitpicky arguments about whether the 14th Amendment covered Trump. There was some talk about it at oral arguments, but the court didn’t reach it, I guess because they didn’t need to. The concurrences didn’t really touch it either. And I think that was wise because the natural reading of the 14th Amendment does encompass the president. There are some counterpoints, but we should not get into them because, frankly, this is one of the most annoying legal arguments I have covered in my entire life.
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Stahl: I think it’s also important to talk about the other piece they didn’t touch, which was the question of whether Donald Trump engaged in insurrection or not! The only way they touched it was to say: Well, different states might have different evidentiary standards. One might have a preponderance-of-the-evidence standard. Another might use a criminal conviction as the standard. There are different ways that states could decide this on an individual state-by-state basis, which is why we should not have states deciding this on their own.
But they didn’t actually touch the Colorado Supreme Court’s decision that Trump did, in fact, engage in insurrection. And to the extent there was wisdom in the majority opinion, that was a wise thing to leave out. They were better off not wading into that, especially since it probably would have yielded an even more divisive and frustrating answer.
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Amy Coney Barrett’s Weird, Passive-Aggressive Trump Ballot Opinion
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05.03.2024
Tweet Share Share Comment To listen to the full episode, join Slate Plus.
The Supreme Court allowed Donald Trump to remain on the ballot in Colorado—and every other state—in an opinion on Monday that was less unanimous than it seems on the surface. Every justice agreed that a state cannot unilaterally disqualify a presidential candidate from the ballot because of their participation in an insurrection. But the court split sharply on the question of how, exactly, the constitutional bar against insurrectionists holding office might be enforced in the future.
On a bonus Slate Plus episode of Amicus, Dahlia Lithwick discussed these fierce disagreements, including Justice Amy Coney Barrett’s effort to bridge the divide, with Mark Joseph Stern and Jeremy Stahl. Their conversation has been edited and condensed for clarity.
Advertisement Dahlia Lithwick: In both the majority opinion and Justice Amy Coney Barrett’s concurrence, there’s such a vibe here of Y’all, we’re not fighting, we’re OK! Don’t worry about the court. Barrett says: “In my judgment, this is not the time to amplify disagreement with stridency.” And she adds: “Particularly in this circumstance, writings on the court should turn the national temperature down, not up.” There’s this weird, passive-aggressive vibe where everybody is kind of pissed off but telling us over and over again: We’re not fighting! We love each other! The court is working! This sense of performing unity and performing minimalism falls really heavily on the four women of the court in their separate concurrences.
Mark Joseph Stern: Right. It’s boys vs. girls. The girls are doing law. The boys are doing … something that doesn’t look a lot like law!
I........
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