Unanimous Trump Ruling Belies Supreme Court’s Polarization

Greg Stohr
·3 min read
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(Bloomberg) -- On the surface, the US Supreme Court was unanimous in ruling Donald Trump can appear on presidential ballots this year. But not far below, the court was full of discord.

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A biting opinion Monday by the three liberal justices left little doubt they were piqued at the reach of the court’s ruling. They blasted their more conservative colleagues, saying the court unnecessarily blunted the constitutional provision that bars insurrectionists from holding public office.

“In a sensitive case crying out for judicial restraint, it abandons that course,” Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote in what was labeled a concurring opinion even though it read more like a dissent.

The opinion, which didn’t list any of the justices as the author, came five days after the court made another pivotal move related to Trump. Last week, they extended a pause on his federal criminal trial for trying to overturn the 2020 election while the justices weigh his bid for presidential immunity. None of the justices publicly dissented from that order, even though the delay risks making a trial impossible before the November election.

The liberals made no pretenses of harmony in the Colorado case. They took a direct shot at Chief Justice John Roberts, the likely behind-the-scenes author of the ruling. The trio opened their opinion by quoting what Roberts wrote in 2022 when he said his conservative colleagues went too far by overturning the landmark Roe v. Wade decision in a case involving a 15-week abortion ban.

“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote at the time.

The liberals’ opinion may have started as a partial dissent. The metadata of the link posted by the court indicated it was labeled as a partial concurrence and partial dissent, with Sotomayor as the sole author, according to Slate’s Mark Joseph Stern.

Five Conservatives

Roberts was one of five conservative justices to join the entirety of Monday’s opinion, including Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. They sought to downplay the divisions, saying the other justices “agree with many of the reasons this opinion provides.”

All nine justices concluded that states can’t enforce the insurrection clause by barring federal candidates from the ballot. Roberts’ group went further and said the clause can be enforced only as laid out by Congress through implementing legislation.

That approach precludes enforcement through federal court cases and potentially will mean Congress can’t use the insurrection clause as grounds for refusing to count electoral votes for Trump should he win the vote in November.

“I’m really angry at both sides, to be honest,” said Jessica Levinson, a professor who teaches election law at Loyola Law School in Los Angeles. “This was such a missed opportunity for the court to speak with one voice on a huge issue of legal importance and political impact.”

The ninth justice, Amy Coney Barrett, tried to emphasize the positive. Like her liberal colleagues, she said Monday that the court decided more than it needed to. But she opted not to join the liberals’ opinion and implicitly criticized its tone.

“In my judgment, this is not the time to amplify disagreement with stridency,” she wrote. “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.”

Less than two weeks ago at a National Governors Association conference in Washington, Sotomayor sat beside Barrett, both insisting the justices manage to disagree in a civil manner — and don’t think in partisan terms.

“We all wear the same color black robe,” Barrett said. “We don’t have red robes and blue robes.”

(Updates with revelation about partial dissent in seventh paragraph.)

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