Supreme Court left-liberal justices say Trump ruling erodes ‘insurrection’ clause

The Supreme Court ruled unanimously on Monday that former President Donald Trump should remain on state primary ballots, although a minority of the justices said the majority’s finding undercuts a provision of the Constitution meant to keep insurrectionists away from higher office.

Criticizing the part of the majority opinion that said a disqualification due to insurrection can only occur in cases in which Congress enacts a particular type of legislation, Democratic-appointed Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson said their view is that their Republican-appointed counterparts formed limits to what “the men who drafted and ratified the Fourteenth Amendment” sought out to do.

Associate Justices Amy Coney Barrett, Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan.
Associate Justices Amy Coney Barrett, Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan. (Fred Schilling/U.S. Supreme Court via AP)

For a unanimous decision, a concurrence looks like a dissent

“Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision,” the trio wrote in a concurring opinion regarding Section 3 of the 14th Amendment, which says that anyone who “engaged in insurrection” can be barred from holding federal office.

The high court’s opinion was per curiam, meaning it had no direct author, and held that “because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.”

“Because we would decide only the issue before us, we concur only in the judgment,” the three Democratic-appointed justices wrote in their concurrence.

The case, Trump v. Anderson, was argued before the justices on Feb. 8 and arose from the Colorado Supreme Court’s 4-3 decision in December to remove Trump from the state’s primary ballot, citing his actions on Jan. 6, 2021, as violating Section 3 of the 14th Amendment. The majority opinion for the Supreme Court overturned Colorado’s decision and halted similar rulings in Maine and Illinois one day ahead of Super Tuesday, when Colorado and dozens of other states will vote for their preferred primary candidate ahead of the November general election.

Although the Democratic-appointed justices sided with Trump, they said that their colleagues in the majority went too far to “decide novel constitutional questions to insulate this Court and petitioner from future controversy.”

Supreme Court Associate Justice Amy Coney Barrett. (AP Photo/Damian Dovarganes, File)

Barrett shows sympathy for the minority vote

Justice Amy Coney Barrett, one of three Trump appointees who make up the six Republican-appointed justices on the bench, also wrote a concurrence that was sympathetic to the minority concurrence.

“This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question [of] whether federal legislation is the exclusive vehicle through which Section 3 can be enforced,” Barrett wrote.

“The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond,” Barrett added. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the 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,” Barrett wrote.

Notably, the six-page majority opinion made no attempts to define whether the events of the Jan. 6 riot at the U.S. Capitol was or was not an insurrection, a point that strained some legal scholars who were eager to find out whether Trump could at any point in the future be barred from office if he hypothetically won the 2024 election after Nov. 5.

“The majority opinion today is very unclear about whether a Section 3 challenge can be brought after the election if Trump wins. A blunder,” wrote Gerard Magliocca, a law professor at Indiana University, on X.

University of Texas Law professor Steven Vladeck also pointed out that the decision marked a rarity in that all of the justices who raised a concurrence not in total alignment with the majority opinion were women.

“It’s not the first time that we’ve seen this split, but it’s still striking,” Vladeck posted to X.

Conservatives see unanimity as the prize

Meanwhile, those on the Right championed the fact that the decision was unanimously in favor of Trump’s bid to stay on state ballots.


“Today’s unanimous 9-0 Supreme Court decision is a victory for the American people, the Constitution, and our Republic,” said Rep. Elise Stefanik (R-NY), who is considered one of several contenders for Trump’s vice presidential pick.

Kevin Roberts, the president of leading conservative think tank the Heritage Foundation, posted to X: “You know the Regime has overreached when even the liberal justices concur.”

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