Strict Scrutiny - SCOTUS Restores Trump to the Colorado Ballot, Unanimously (Kind Of)

Episode Date: March 5, 2024

The Supreme Court released its opinion in Trump v. Anderson, saying Colorado and other states can't disqualify Trump from the ballot under Section 3 of the Fourteenth Amendment. Kate, Melissa, and Leah break down the (expected) outcome, the (heinous) reasoning and what it means going forward. One guess as to which justice has BDUE (big Dolores Umbridge energy).Listen to our recap of the oral arguments in the episode "SCOTUS Has Their Own Theories About Trump's Eligibility" Follow us on Instagram, Twitter, Threads, and Bluesky

Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Littman. And today we are your podcast about the Supreme Court's continued efforts to read the 14th Amendment out of the Constitution. The Supreme Court decided the presidential disqualification case. So we are bringing you an actually expedited emergency episode to explain what they did and break it down. I think we should also use this episode to officially launch the it's time for

some bad decisions segment because yikes between the court's order in the January 6 criminal case and this decision it's bad and I want to be clear like by bad I'm not necessarily talking about the bottom line conclusion in this case allowing states to disqualify presidential officers is complicated but the reasoning in this decision is bad it's really bad and because I don't know at least speaking for myself think law law is a thing. And, you know, we're law professors, we think that matters, in part because of what it reveals, you know, is driving the court if it's not. We're just awful institutionalist law professors and not the really cool law professors. I was just so strident there.

Not the cool law professors who were never really buying into this whole institutionalist thing and are jaded and cynical by nature. We're so naive, you guys. So dumb, ladies. Strident, dumb lady brains. All right, so let's bring all that to bear on the opinion that the court issued this morning. And the bottom line, which Leah alluded to a minute ago, is that the Supreme Court said that Colorado and other states cannot disqualify Trump from the ballot under Section 3 of the 14th Amendment. So that narrow bottom line holding was 9-0. It was unanimous. But the opinion is actually more like 5-4 with respect to the court's reasoning. And that reasoning, which garnered just five votes, says that the power to disqualify insurrectionists lies only with Congress, and also that there are substantial

limits on the way Congress can disqualify insurrectionists. We'll break down that opinion, which was a per curiam opinion, meaning no identified author. We'll also talk about a separate writing by Justice Barrett. And then we will talk about a separate concurrence by the court's three Democratic appointees. Which really read like a dissenting opinion, had real dissenting force energy. I know, I keep stumbling over concurrence. But they did. They did agree with the bottom line, but it was one of those violent agreement about the bottom line and disagreement about the reasoning in the majority or in the per curiam opinion. Well, let's talk about that per curiam opinion.

So it holds, as we predicted coming out of the oral argument, that states lack the authority to enforce Section 3 of the 14th Amendment against federal officers, especially, maybe only, it's not entirely clear, when those federal officers are also presidential candidates. But then it goes further to opine that history and tradition and text and maybe all of the things make clear that only Congress can enforce Section 3 and only by remedial legislation that the Supreme Court deems congruent and proportional. Can I just stop you for a minute? Yeah.

This was a Section 3 opinion that I think I'm going to use to teach Section 5 of the 14th Amendment now. For sure. For sure. Because it actually says legitimate things about Section 5, namely that Congress has the primary role in enforcing the Reconstruction Amendments, which is not something the court basically ever does in actual Section 5 cases. But of course, when it gives with one hand, it takes away with the other in saying the

court is going to superintend Congress's exercise of that enforcement authority. This is exactly like the Fifth Circuit's reasoning in the CFPB case where they're like Congress's authority to make appropriations. It's so exclusive. We court are going to tell Congress how they have to exercise that authority. And here the Supreme Court is saying Congress's power under the Reconstruction Amendment is so authoritative, right? So primary. We Supreme Court are going to tell Congress how it gets to exercise that power because it seems like the court is effectively ruling out the possibility and the permissibility of a majority of congressional representatives refusing to seat someone who's been elected to office if the representatives believe that person is an insurrectionists. Like that seems to be a key dividing line between the five justices in the per curiam opinion and the others. I should note, I have seen some people suggest the court didn't actually rule that out or require Congress to act via legislation here. But we'll go through the passages in the opinion that at least I think are indicative of that view. And I am not in the

business of saying that we told you so, except when I am in the business of saying that we told you so. And I just want to say we did tell you so. And because I am someone who likes receipts, I brought some today. So let's roll some clips. When Jason Murray took the lectern. Based on the various colloquies between Murray and the justices, we are pretty convinced that the court is going to reverse the Colorado Supreme Court on the ground that states cannot disqualify federal officials or perhaps just the president absent congressional authorization to do so. This is a little different from any of the arguments Mitchell made, though it's related to some of them. So we're going to flesh that out. And we should note that it's not clear how exactly the court will justify this new,

air quotes, rule that states can't disqualify federal office holders absent congressional authorization. But it does seem like that is exactly the direction that they're headed in. So despite calling this, I think I'm still pretty triggered and offended by this opinion. So it is actually worse than we thought it was. Don't you think? I agree. Like, Melissa, you brought the receipts. The court did not bring the receipts, the timeline, the screenshots, or anything. Or the law! Yeah, so not surprising as a bottom line outcome, but nevertheless disappointing in particular in reasoning. And to go back to

something that we said a couple of minutes ago, even when the court behaves in what really feel like unprincipled ways, we continue to think it's important to try to hold them to higher standards. And so we're going to walk through some of the acrobatics that the court performed in order to, you know, first to get Trump back on or to remain on the ballot. And second, and more egregiously, in some ways to make it harder to disqualify insurrectionists, including Trump, going forward. So understanding these inconsistencies and the court's pretty incoherent rationales helps underscore a point the Democratic appointees made in their separate writing, which is that they accuse the court of, quote, deciding novel constitutional questions to insulate this court and petitioner from future controversy, close quote. And the

petitioner, to be clear, is Donald Trump here. To be clear, and to be clear, the Democratic appointees are basically saying that this court is in the bag for Donald Trump. That's the big charge. I mean, that concurrence slash dissent was ready and loaded for bear because they made really clear that we all should take note, especially on the heels of the court's recent decision to grant Sarsha Rari in the Trump immunity appeal related to the criminal case arising out of January 6th that jeopardizes the possibility of a trial before the election, that we ought to understand everything the court is doing as in service of Donald Trump. Like, this is the committee to reelect the

president. And they are creepy. Some more than others. The Democratic appointees also expressed concern about how, quote, the majority shuts the door on other potential means of federal enforcement and, quote, of Section 3. Okay. So as promised, we are going to walk through the problems with the reasoning in this opinion. First, again, as a kind of top line, the court has, taking a phrase from Sam Alito, basically shadow banned and content moderated the 14th Amendment out of the Constitution. Here's specifically Section 3 of the 14th Amendment, because the court said federal officeholders can be disqualified from office if Congress passes legislation under Section 5. And these are the passages that I had in mind when I was saying it seems like the per curiam kind of rules out the possibility of other methods of Congress disqualifying federal

officeholders. So here's one, quote, the Constitution empowers Congress to prescribe how these determinations should be made. The relevant provision is Section 5, which enables Congress, subject, of course, to judicial review, to pass appropriate legislation to enforce the 14th Amendment, end quote. The court also adds, quote, Congress's Section 5 power is critical when it comes to Section 3, end quote. I should note that in a really weird sentence, the court also says that in the years following ratification, the House and Senate exercised their unique powers under Article 1 to adjudicate challenges contending that certain prospective or sitting members could not take or retain their seat

due to Section 3, end quote, which seems to acknowledge that Congress may have sometimes done this without authorizing legislation. But those other passages in the per curiam opinion led, I think, me, as well as the joint concurrence by the Democratic appointees, as well as the Barrett concurrence, to say the majority decided that federal legislation is necessary to enforce Section 3. And in one of the more, I think, Orwellian passages of the per curiam opinion, the court says that, quote, the text of Section 3 reinforces these conclusions. When the text kind of says the opposite, like the text does not reinforce that conclusion, the text of Section 3 containsces these conclusions when the text kind of says the opposite, like the text does not reinforce that conclusion.

The text of Section 3 contains a prohibition just like the text of Section 1 does. Section 1 contains the prohibitions on states denying equal protection and depriving people of liberty without due process. And Section 1 is enforceable. That prohibition is enforceable even if Congress doesn't enact statutes. And Section 3 says nothing about affirmatively requiring congressional legislation. To the extent that it says anything about Congress, it suggests that legislation isn't actually needed to enforce Section 3. And yet the court uses language in Section 3 that undermines its conclusion and insists that the language actually supports its conclusion. So the court says, quote, its final sentence empowers Congress to, quote, remove any Section 3 disability by a two thirds vote of each house. The text imposes no limits on that power and Congress may exercise it

anytime as the respondents can see, end quote. Melissa just made a face that like, I wish our listeners could see. The math ain't mathing. Exactly. And to break down exactly how it's not mathing, the argument that the PC opinion offers just truly makes no sense. So, you know, as we talked about in our previous coverage of this case, and as Melissa just described, the language in Section 3 says that Congress can remove a disability by a two-thirds vote. This, to our mind at least, makes it less likely, in fact, virtually incoherent to claim

that Section 3's prohibition on insurrectionists holding office has no teeth absent congressional legislation. The provision that grants the power to remove a disqualification by a two-thirds vote clearly contemplates that disqualification already exists. Otherwise, the two-thirds vote to remove the disqualification wouldn't be necessary. What am I missing? No, you're not missing anything. This is an example of what I mean when I say the court is no law, just vibes, right? They took some superficial legal thing,

the text of section three, and just declared that it means the exact opposite of what it seems to logically mean. Because if Congress can only remove a disqualification by two thirds vote of each house, why would the amendment give a simple majority of Congress the power to block disqualification at all, since a simple majority could block the passage of legislation? Like, that's why this is Orwellian. The opinion is replete with references that minimize Section 3, which I think is really interesting as well. For example, the majority says this, quote,

It, Section 3, was designed to help ensure an enduring union by preventing former Confederates from returning to power in the aftermath of the Civil War. End quote. No, friends. Sorry. It's about insurrectionists. Like, just full stop. Insurrectionists who could be former Confederates but could also be other people conspiring to overthrow the government. It says insurrectionists.

This isn't textualism. It's just some other thing. So there are those issues with the court's reading of the text of the 14th Amendment. And another thing that I think is particularly galling about the per curiam opinion really gets to a point that we talked about with Sherrilyn Ifill on a recent episode. And Sherrilyn Ifill is someone who actually knows some things about the 14th Amendment, unlike the individuals who joined this per curiam opinion. And that issue is this. The court's decision is especially egregious in light of what this court has done with Section 5 and Congress's power to enact legislation to enforce the 14th Amendment. This is something we were alluding to at the outset of this episode. So

the opinion repeatedly invokes the centrality of Section 5, that is the enforcement clause, to the design of the 14th Amendment. There have been a litany of cases, however, in which the Supreme Court has actually invalidated legislation that Congress enacted under Section 5 of the 14th Amendment on the view that Section 5 severely limits the kinds of laws that Congress can enact under Section 5. Do you see the circularity here? So here are some examples. In the civil rights cases, the court in the 1880s struck down the first Civil Rights Act of 1875 on the ground that Section 5 only authorized Congress to take steps to limit state action, not private acts of discrimination. Likewise, in City of Bernie v. Flores, a more recent case, the court struck down the Religious Freedom Restoration Act as applied to the states on the view that it was not congruent and proportional remedial legislation. In Kimmel and Garrett, the court struck down provisions of the ADA and the ADEA as applied

to the states on a similar view. In United States v. Morrison, it struck down Section 13981 of the Violence Against Women Act on the view that it applied to private conduct as opposed to state action. In Coleman, it struck down parts of the FMLA as applied to the states. In Allen v. Cooper, it did the same thing in the context of a Patent and Copyright Act. And in Shelby County v. Holder, it concluded that the VRA, though not a Section 5 case, was not congruent and proportional in the context of remedying rampant voter discrimination. So this court at every turn has really tried to limit the force of the Reconstruction Amendments and Congress's constitutionally conferred authority to enforce

the requirements of the Reconstruction Amendments. And in many of these cases, the court has said that any legislation that Congress enacts under Section 5 must be congruent and proportional to a pattern of constitutional violations. And the court has said that this places more restrictions on Congress's power to enact laws under Section 5 than when Congress enacts laws under other powers that are contained in Article 1. then to be incredibly trigger happy when shooting down congressional legislation that's authorized under Section 5 of the 14th Amendment, and again, to limit the force of the 14th Amendment and the other Reconstruction Amendments. But... And now in the disqualification case, the Supreme Court comes along and says, because Congress has not enacted legislation, that means Section 3 is unenforceable. They are acting as if Congress's failure to adopt legislation is entitled to more respect and more deference from the court than

when Congress actually does enact legislation. Pick a lane. Pick a lane. And this turns the 14th Amendment, in my view, into like a Schrodinger's Amendment of congressional power that exists but also doesn't really exist. Like the court is saying the substantive provisions of Section 3 are unenforceable and effectively not the law because Congress hasn't done anything. But in all the previous cases, the court has denied Congress's power to enforce the amendments, making the 14th Amendment less robust when Congress actually does something. Another thing that the opinion made me think about was the possibility that the Reconstruction Amendments in general contain some sort of SCOTUS supremacy principle, which is that the court gets to strike down congressional legislation to enforce the amendments in all the cases that Melissa was just talking about, but also can say that Congress's failure to enact legislation means that other provisions are unenforceable and that the Supreme Court won't decide whether someone is barred from office under Section 3 absent congressional action.

And this is all very difficult to square with a history of the Reconstruction amendments because Congress, when enacting those amendments, was very, very skeptical, and rightly so, of the Supreme Court and pretty clearly would never have wanted the audacity to include in their opinion in this case, of the hypocrisy and how the court treats actual legislation enacted under Section 5 compared to the absence of legislation. So they cite legislative history of the 14th Amendment, which Neil Gorsuch is apparently now fine with, quoting a senator about Congress's role in enforcing the amendment. And then the court notes that, quote, the enforcement mechanism the senator championed was later enacted as part of the Enforcement Act of 1870, end quote. The opinion also mentions this a second time, quote,

instead, it is Congress that has long given effect to Section 3. Shortly after ratification of the amendment, Congress enacted the Enforcement Act of 1870, end quote. Well, guess what the Supreme Court did with the Enforcement Act of 1870? Oh, details, Leah, details. I know. Like, the court effectively took the teeth out of, right, and nullified the force of the Enforcement Act by reading it so narrowly they read it to be toothless against the threats of racial violence from the KKK. That was the case Cruikshank versus United States, which we talked about on our episode with Sherilyn.

That case involved the Enforcement Act of 1870. The case reinvigorated the Klan and helped facilitate the end of Reconstruction because the opinion said that a white militia attacking black freedmen at a courthouse surrounding the contested election in Louisiana was not something that could be prosecuted under the Enforcement Act because, again, they would not give Congress the actual authority. They wouldn't let Congress to actually enforce the Reconstruction Amendment. So the Supreme Court has hamstrung Congress from enforcing the amendments. At the same time, it is now insisting that it must be Congress who enforces the amendments. And it's just, in my view, completely shameless. But on brand. Yes, yes. Shameless and on brand. So the bar, as you say, is in hell. Correct. So I think this is as good a moment as any to bring up the joint opinion concurring in the judgment, but essentially dissenting from

everything else that the Democratic appointees wrote. So here's one of the lines that I wanted to quote. Quote, in a case involving no federal action whatsoever, the court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legislation under Section 5. These musings are as inadequately supported as they are gratuitous, end quote. I love Zero Fucks Elena Kagan.

I know. Absolutely. Also zero fucks Katonji Brown Jackson and zero fucks Sonia Sotomayor. All of it. I love it all. My one note is that they maybe should have captioned the opinion concurring the judgment, comma, but also dissenting from all of the bullshit. Oh, that would have been great. Let's get that.

Let's make that happen. Let's make that happen. Let's make Supreme Court dissents great again. Another thing that struck me in reading all of these opinions is that the court is selectively toggling back and forth between whittling down congressional legislation and ramping up the absence of legislation. And it all reminds me of Pam Carlin's terrific 2012 Harvard Law Review forward, Democracy and Disdain. And that forward began with the line, quote, sometimes the justices seem barely able to hide their disdain for the other branches of government, end quote. And there Carlin argued that the current court combines a very robust view of its interpretive supremacy

with a strikingly restrictive view of Congress's enumerated powers. And she continues, the Roberts court's approach reflects a combination of institutional distrust, the court is better at determining constitutional meaning, and substantive distrust, congressional power must be held in check, end quote. Basically, when the court is talking about Congress, it is reliably using Congress as a punching bag. And in doing so, it arrogates power to the court at the expense of Congress, which we have seen over and over and over again. This is a recurring theme. We see this in the administrative law cases. could not be higher because it's not just whittling away Congress's power and arrogating power to the court. It's arrogating power to the court so that it can serve this prospective presidential campaign. So the court purports to basically center Congress as the key actor here.

But in all of these ways, as you just mentioned, Melissa, the court is really centering itself. And so let's talk a little bit about how. So the court basically says in the Procurium opinion, disqualification by Congress has to be the kind of primary method or the sole method of enforcing the 14th Amendment. But that disqualification, according to the court Congress has to happen. So one, by legislation, and legislation that in the court's estimation is sufficiently remedial under Section 5, that it would satisfy the court's congruence and proportionality test. So it would enforce Section 3 as the court understands Section 3. But then there are also all these questions that Leah alluded to a couple of minutes ago about whether the court's reasoning here actually upsets long-settled practice in which Congress gets to determine the qualifications of its own members. So there is historical practice of Congress refusing to seat insurrectionists, including in an episode the court cites involving John Christie. There

was no legislation in that exclusion. Does the court seem to think that in the future, an actual bill passed by both houses and signed by the president will be required before that? I think the same questions arise with respect to expulsion of a member, which under the Constitution, each house can do with a two-thirds vote that happened with New York Representative George Santos just a couple of months ago. Does the court here also say that if a sitting member engaged in insurrection, there would first need to be legislation before a House could expel that member for insurrection. And the last thing I think the court leaves somewhat unclear is whether Congress in the joint session of Congress that was the target of the January 6th attack, whether Congress could potentially disqualify an insurrectionist as part of its counting function.

I think no under the court's reasoning. So these are all ways that Congress is actually constrained even as the court is at pain to suggest that Congress is in the driver's seat. Yeah. And even if Congress enacted legislation, it is possible that this court would say the legislation was not sufficiently remedial, as Kate was alluding to. So imagine if Congress enacted a law disqualifying Trump on the ground that they thought Trump was an insurrectionist. My guess is there are at least two votes on this court to strike down that legislation on the ground that it wouldn't be consistent with this Supreme Court's understanding of Section 3 and therefore would not be remedial. There's also some discussion about the actual events that are at the heart of the case. This is the most the five justices who joined the Procurium opinion were willing to say about the events of January 6, 2021. Quote,

these voters, whom we refer to as the respondents, contend that after former President Trump's defeat in the 2020 presidential election, he disrupted the peaceful transfer of power by intentionally organizing and inciting the crowd that breached the Capitol as Congress met to certify the election results on January 6, 2021, end quote. That's it. And again, I think you have to read that in conjunction with its grant of certiorari, where it seems to credit the idea that maybe there is some room for disagreement about whether or not Donald Trump's actions were allegedly in the scope of his office or not. That's their language, not mine. But again, it just seems like they are really going out of their way to sort of limit the

discussion of what happened on January 6th and to minimize its importance going forward, both in this election and generally as a matter of constitutional law, which leaves it to the three democratically appointed justices and their concurrent slash dissent to actually describe what is in fact at stake. And they do. And we'll turn to that writing in just a minute, but maybe like a couple more beats on the per curiam opinion first. And one is that there are these other kind of dubious attempts at support that the opinion offers. So there is this gem that is worth quoting, and that is, quote, nor have the respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the 14th Amendment. Such a lack

of historical precedent is generally a telling indication of a severe constitutional problem with the asserted power. And I just have to ask, is that really what is a telling indication of, or might it also have something to do with the happy fact that until recently, we just haven't had presidents attempt to interfere with the peaceful transition of power. And thus, there just hasn't been reason to invoke this provision. Might that be why we don't have a documented history of the sort the court seems to be looking for? I think you're asking, Kate, whether this opinion is willfully blind or deliberately

obtuse. I'm going to say both. It's also completely clueless and perhaps even deliberately obtuse about the highly federalized nature of federal elections already. So the court makes a lot of the fact that it would never allow a, quote unquote, patchwork of ballots that would result from state enforcement. Doing so would, quote unquote, sever the direct link that the framers found so critical between the national government and the people of the United States, end quote. Now, we predicted that they would never countenance this idea of a patchwork of ballots. But this reasoning is, frankly, just absolutely bonkers, because we already give the states enormous leeway in running

elections. And you know, all they had to say is like, for this election for the ballot, like, it's really important that we have like the same candidates be on the ballot, whatever. But the idea that we're just going to base this in the view that all elections have to be sort of nationally governed and uniform, they themselves don't even do that, because they are constantly allowing and crediting suppressive voter laws that make it difficult for certain groups in one state to exercise the ballot, whereas it's perfectly fine for those groups in another state. So we already have a patchwork of electoral policies throughout the country. And we already give the states enormous leeway in how they run their elections, including elections for federal

office. So it is a little late to be stating that there is a broad constitutional infirmity about the prospect of patchwork election policies. We already have that. There is a reason, I think, to be concerned in this instance. But across the board, this court has already blessed the prospect of numerous voting laws that are a patchwork all across the country. So in addition to waking up to some of the concerns with the federalized system of elections, something else dawned on the court in this opinion, which is that maybe multi-factor legal tests are OK. Because for a bunch of people who gave Justice Breyer endless amounts of shit for adopting

multi-factor legal tests, all of a sudden they seem just fine with them. You know, the opinion says, quote, it is the combination of all of these reasons set forth in this opinion that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the court unanimously reaches, end quote. You know who thought this decision was well-reasoned, though? Donald Trump. And he knows some things about the law. So let's play his reaction here. Very important decision. We're very well crafted. And I think it will go a long way toward bringing our country together, which our country needs. And they worked long,

they worked hard. And frankly, they worked very quickly on something that will be spoken about 100 years from now and 200 years from now. Extremely important. And then in another statement, you know, he capitalized and emphasized on the fact that the courts seem to be together on this issue as far as the bottom line results. So we'll play that here as well. So just to finish, I have great respect for the Supreme Court. And I want to just thank them for working so quickly and so diligently and so

brilliantly. And again, this is a unifying factor. Everybody in ours together, and they can go after me as a politician, they can go after me with votes, but they're not going to go after me with that kind of lawsuit that takes somebody out of a race who's leading in this case, but even if the person wasn't leading. And I want to thank you all for being here. Tell me you didn't read the concurrences without telling me you didn't read the concurrences. Right. Exactly. Exactly. And speaking of the concurrences, we are now going to go on to discuss the separate writing by Justice Barrett. This is in part a concurring opinion and in part a concurrence in the judgment. What that means is she did not join some of the reasoning in the per curiam opinion.

Specifically, she did not join the parts of the opinion that seem to, in various passages, require congressional legislation to authorize disqualification. I mean, the TLDR of this opinion is I'm a cool girl. Pick me, fellas, right? That's all. What else? What else was there to say about that? I mean, basically, she says in this opinion, like the other ladies on this court, I agree that this per curiam opinion is getting way ahead of itself. We could just decide here that the states can't enforce Section 3 against a presidential candidate. But instead of actually joining the other women on the court in a show of solidarity and maybe explaining why this court is completely high on its own supply, I will instead bash my fellow sisters and big up Brodus because feminism. These bitches have turned the temperature

up, way up, and I will not have it. I will not have it. Amy Barrett out. That's the opinion. That sounds like an overstatement. Melissa just did a very faithful paraphrase of exactly what Amy Coney Barrett wrote. So I'm actually going to quote it here and you'll see how similar it is. So she basically says after noting that, again, she would have decided the case just by narrowly holding that Colorado couldn't disqualify Trump, quote, the majority's choice of a different path leaves the remaining justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The court has- You harpies! That was implicit, but definitely there.

And she goes on, the court has settled a politically charged issue in the volatile season of a presidential election. Particularly in this circumstance, writings on this 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. Wait, time the fuck out. How is it that she agrees that Brodus is the problem, but she's beating up on the other women? This is so on brand, both for her and for the political context in which she was appointed. Here you have Justice Ginsburg's replacement calling her now three female colleagues strident. And it exemplifies the hollowness of the brand of identity politics that the Republicans traffic in, where feminism means just appointing women to the Supreme Court who will lecture the other harpies about being overly strident in their efforts to warn democracy about what this court is doing. She's weaponizing her gender and her presence on the

court against her female colleagues who are attempting to inform the public about what the court has done. And nothing, there are very few things that annoy me more than women giving cover to regressive gender politics and dynamics, which she seems to just twirl in like that is her metier if you will um and and also girl like if you think this opinion is strident have you read anything by the justice you clerked for antonin scalia who literally said he would quote hide his head in a bag rather than join a majority opinion of the court or for that matter he's a man that he can't be strident. Well, okay, okay. You can only be strident if you have ovaries. You know who else

isn't strident? Neil Gorsuch. It's called legislation. Or Sam Alito, who in Fulton wrote a concurrence where he said the court has emitted

a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this court to stand up for the First Amendment have every right to be disappointed,

as am I. Nope, that's a sharp wit, a sharp pen. That's not stridency. Nope, totally as am I. Nope, that's a sharp wit, a sharp pen. That's not striding seat. Nope, totally different. Sam Alito, famous for his sharp wit. Okay, that was really targeted Scalia. Yeah.

I don't know what to say. That's fair. Not Alito. I did want to say that this writing confirms something I have ascribed to Justice Barrett before, and that is her very strong Justice Dolores Umbridge vibes. Like, the real danger is not that Voldemort might be about to return, but that people are getting worked up about the fact that Voldemort might return and are trying to guard against Voldemort's return. She's literally saying, like, you must be civilized and speak in a civil tone when the coup starts, ladies. The insurrection must be met with

civility. This is big whiz and gamut energy, I have to say. It has, please don't say we're mad, right, elements to it. Like, I'm not mad, please don't put in the newspaper that I got mad, kind of undercurrents. And it is consistent with what I think of as a pattern now of her showing flashes of these bros are crazy and I'm not one of these SCOTUS bros, BROTUS SCROTUS, but at the same time failing to actually meaningfully materially distinguish herself from them because she's right, of course, that the percurium went further than necessary. But then she turns around and tries to shame her three female colleagues who explain why the court shouldn't have done more than necessary to resolve the case. Ladies, when our overlords speak, you're supposed to be

decorous and civil. Smile. Smile more. Smile more, Sonia, Elena, and Katanji. Smile more. And even though I think she wants to be saying that this case is evidence that the court is great and totally about the law. The thing she emphasizes is the fact that the justices agree, quote, on the outcome, like not on the law or the legal reasoning. Apparently, outcomes are what matters now, like who knew? And the end of the majority per curiam opinion has some of this too. Yeah, the end of the majority opinion says, quote, all nine members of the court agree with that result, end quote, like leaving aside the fact that there are some major disagreements, like they're all in agreement. With that in mind, for some actual reason, unclear to anyone else on

the court, Justices Sotomayor, Kagan, and Jackson issued a joint concurrence that concurred in the judgment, but basically dissented from all of the other, quote unquote, like that's the legal term, which is to say that this writing is joint in the sense that it doesn't identify a single author. And it's a concurrence in the judgment because they refuse to join any other parts of the per curiam opinion. And so to our mind, this is really a dissent and I'm going to treat it like a dissent. So I wanted to note one thing about this, which is Mark Joseph Stern of Slate, who is fantastic, noted that if you double click on the opinion where it says JJ at the top and copy paste it or control F, the line actually reads Sotomayor J concurring in part and dissenting in part. And if you do a control F search for that, exactly, it highlights the same line.

It appears in the metadata. So that provides some important legislative history about how this began and took shape. Fascinating. Yeah, I also wonder if Barrett was trying to get them, like whether you sort of see that the results of some protracted negotiation on their side of the nine that they then – The knitting circle?

Things really broke down in their efforts to – Apparently. Someone got shivved with a knitting needle. We'll never do that again. But that's fascinating. I hadn't seen that stern catch. That's really, really interesting. Okay.

So whatever it is, partial concurrence, partial dissent, concurrence in the judgment, it starts with a bang. And that bang is that it cites the Chief Justice's concurrence in Dobbs, the case, of course, that overruled Roe, but where the Chief Justice would have proceeded more incrementally than his far more venturesome colleagues. And here's the quote, if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. So wherefore that humility and minimalism, John Roberts, seems to be the question, the rhetorical question, at least, that the concurrers begin with. I think we were all so exercised about the majority opinion and Dobbs that we really

skipped over the chief justice's concurrence, in part because it was like so completely pointless but that what you just read it is if it is not necessary to decide more to dispose of a case then it is necessary not to decide more like that is so like the way to stop discriminating on the basis exactly does this guy have another lane he has a template and he just like inserts, right? Like what's your grievance? Insert here. So that's how the three justices, Kagan, Sotomayor, and Jackson start off. And let me just say, the tea continues to steep and get hot. So the next thing they do, like I think it's actually the next paragraph, is they call Donald Trump, not explicitly, but it is very definitely implied,

a quote unquote, oath-breaking insurrectionist. And there is no allegedly or anything like that. They're just like, oath-breaking insurrectionist. And to which I say, maybe accurate.gif. Here's the exact quote. Quote, in this case, the court must decide whether Colorado may keep a presidential candidate off the ballot on the ground that he is an oath-breaking insurrectionist and thus disqualified from holding federal office under Section 3 of the 14th Amendment. End quote. Ladies. I should be clear that that emphasis that Melissa added to the passage is also evident in the metadata. Right, if you look carefully.

Just click on the line. And then here comes Professor Katonji Brown-Jackson with her PhD dissertation on the Reconstruction Amendments, noting that, quote, the contrary conclusion that a handful of officials in a few states could decide the nation's next president would be especially surprising with respect to Section 3.

The Reconstruction Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty. Section 3 marked the first time the Constitution placed substantive limits on a state's authority to choose its own officials. I just want to say, and she goes on to say like that by itself is how we should decide this case. But I love that she's sort of sticking it in there like I am going to educate this entire populace about the Reconstruction Amendments at every possible turn I have, every possible chance I can get. It is also worth noting that this opinion contains the only reference to the importance of Section 3 in all of the writings that were issued on this case. The joint concurrers, dissenters say, Section 3 serves an important, though rarely needed, role in our democracy. Just kind of taking through the different elements to this joint writing, the closing section of this joint concurrence in the judgment slash dissent includes them calling this opinion in Trump versus Anderson, basically Bush versus Gore 2.0. So they

write, quote, what it does today, the court should have left undone, end quote. And that is quoting Bush versus Gore, Justice Breyer's dissenting opinion. That is the opening passage to their concluding section. And the separate writing also notes that in addition to the hurdles that the opinion erects to congressional enforcement of Section 3. It also disables courts from enforcing Section 3, both, you know, as to ballot access specifically, as in this case. But it also offers this kind of I found chilling example, which is the writing explains that the decision, quote, forecloses judicial enforcement of Section 3, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. So, you know, impossible to know who they might have in mind as an insurrectionist who somehow ascends to high

office and then deploys a prosecutorial apparatus to target enemies. You might think that under those, you know, just complete, no idea, no one springs to mind, but it's still a very dystopic vision and one in which a court would be, it seems, disabled from considering an argument that the insurrectionist actually is without constitutional authority to hold the office that has unleashed the prosecution. So I don't think that was a trivial or incidental example that the concurring opinion, you know, trotted out in terms of what the consequences of this ruling might be. On that note. Well, I mean, we expected it, but we didn't expect this.

Yeah, again, like expected the result and the kind of hollowness of the reasoning, but they went further than they had to and that they had telegraphed that argument. In terms of maybe final thoughts, we want to offer any before we wrap. I mean, one, just because we haven't said this, it was pretty quick, the opinion. It could have been quicker. I actually suspect that the debates among the ladies- Given the shitty reasoning, it definitely could have been quicker, right? And it's 20 pages. For a Supreme Court opinion, that's pretty short. And that's 20 with three writings. And that's all the opinions combined. Yeah. So it's whatever, three and a half weeks for, that is relatively quick, maybe, you know, more protracted because of these discussions about how the separate writings would be characterized and who would

sort of join forces and how. But I also just think that that's an important lesson for the immunity argument, which is like, it was not an accident that the Supreme Court issued this opinion on Monday before Super Tuesday, because it understood that there were imperatives to get the opinion out before the election, even though, you know, Colorado is a vote by mail state and most people have already voted. The ballot had Trump's name on it. So, but at least, you know, atmospherically, it was really important for them not to continue to sit on this after Super Tuesday. And they got it and they moved expeditiously. I mean, like the immunity decision, who really needs to know that? Right, exactly. This is the fear because there's not a date certain. I don't know exactly how to force their appreciation of the urgency in the absence of a date certain.

Like Bush v. Gore. They know the urgency, Kate. Exactly. They're being willful. They know the timeline Judge Chutkin established. They can count. They live in D.C. It's not that hard.

I mean, like, they know what's going on. This is purposeful. Well, we'll see once the argument happens. This is purposeful. to participate in a nationwide election to select the chief executive, which is all the reasoning on display here, though, that should counsel in favor of letting there be a trial and a verdict. And somehow their very logic here seems to my mind to counsel in favor of speed. And that I just think is an important message, not that I'm saying they will hear it, but that it's at least worth voicing. Yes, I agree. Can I offer another message? My favorite, Pollyanna. Okay, I'm going to come back to it. Do you remember all those rumors

around Bush v. Gore about how Sandra Day O'Connor was allegedly at some dinner party and when she found out like that everything was... I think that's confirmed. Yeah?

Yes. Okay, was it confirmed or was it fine? I mean, okay. She expressed dismay because she'd been planning to resign or retire from the court

and this Al Gore winning would have thwarted her plans. Have we given serious consideration to the fact that like there are at least two justices who may have real, real interest in seeing Donald Trump be elected? One, someone whose wife is apparently very close, at least like has text messages that are insurrectionist adjacent. So that might be an issue. But just as a general matter, there are two septuagenarian justices who might want to step down under a Republican president and have their replacements be movement conservatives just

like them. And for that reason, maybe they're just not that inclined to throw a wrench in the works that subjects their preferred candidate to a criminal trial where he might be found guilty and be wearing an orange jumpsuit on January 20th. And all of the Fifth Circuit judges who have been performing endless antics in order to audition for this role, you haven't done enough. Do more, sirs. Do more. I mean, it's truly dystopian. I mean, Kate, I don't think this is a court that is going to be built for speed I mean, it's truly dystopian. I mean, Kate, I don't think this is a court that is going to be built for speed. I think it's built for something else.

Well, those two obviously are a lost cause in every way. I see the Chief Justice, too. I mean, he's in his 60s. Also, don't you think the Chief Justice wrote this? I mean, I thought it was Dobbs' opinion, the Dobbs quote at the beginning.

I think the Chief wrote the PC and Kagan wrote the concurrence dissent, whatever it is. Yeah. Do you disagree, Leah? Although the metadata suggests that Justice Sotomayor. No, metadata suggests Justice Sotomayor. My guess is Justice Sotomayor wrote the initial draft and then Kagan punched it up. And Justice Jackson.

Justice Kagan added a star footnote that was like, fuck you, clowns. And Justice Sotomayor and Jackson were like, how about we edit this to say, you know, like the court went further than it needed to and was like gratuitous. Anyways, that's how I imagine it. I thought it was really snarky. I thought it was like super snarky. Yeah. They're also can I just say, like, can we talk a little bit about Twitter for a minute? So I wrote that I thought the dissent slash concurrence was snarky. And someone was like, I wish they would stop doing snark and save our democracy. And I'm like, excuse me, ma'am, can you count like three people? Like, you know how we could save our democracy by like actually doing a lot to get people out

and voting and putting the court on the ballot and recognizing that this court is not an inevitability. This is something we got because people sat at home in 2016 and Donald Trump got elected. So you're saying decorum is not going to get us there, Melissa? I mean, obviously. I mean, like, I really almost like... Civility and whining about Joe Biden's age also won't do the trick either. Like, seriously, it's only because I had to log on to meet you guys. I didn't write back, like, what are you talking about? Do you know how to count? Do you know how government works? Like,

like what, what are three people in the minority going to do to save democracy? Like get three of your friends and go to the polls and then get three of their friends and take them to the polls and like get a bunch of college kids and go to the polls. That's where this opinion leaves us. I mean, it does,

which again is not to say like the court, I think obviously attention is going to shift to the immunity case. And that case is not disconnected from – the court, I think, obviously attention is going to shift to the immunity case. And that case is not disconnected from actual electoral democracy. It's deeply, deeply connected. But given the track record of this court, there's no reason to be confident, which is not a reason not to urge. But it is a reason not to put all eggs or really any eggs in that basket and instead to assume that the – Only if the eggs are extra uterine children. Put those in a drop box and you know together passenger seat and go through the hov lane i don't know the 14th amendment the court put it in a drop box and left it at a fire station

so there we are um another banger from the nation's highest court only the best for us nine greatest legal minds in the country. It's only Monday. I'm geniuses. All right. That was grim. Let's, let's end this.

Let's end it. Okay. I'm calling it time of death. Democracy. 206. Okay. Strict scrutiny is a crooked media production hosted and executive produced by Leah Littman, me, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell. Okay. Herringer and Ari Schwartz. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people

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