Court minority worries majority opinion could block future challenges

At the top of the U.S. Supreme Court’s opinion in the case of Trump v. Anderson is the term, “Per Curiam.” That’s a shorter and fancier way of saying, “by decision of a court in unanimous agreement.” But that characterization is somewhat modified by the background noise from two separate opinions.   

Yes, all nine justices agreed that the Colorado Supreme Court’s decision could not bar former President Donald Trump from access to the state’s presidential primary ballot. The majority agree that section 3 of the 14th Amendment of the Constitution, which bars candidates from office who engaged in insurrection, can be enforced only by an enabling act of Congress.

But the unanimous opinion is actually three opinions. The first, roughly 13 pages long, declares all nine members of the high court “agree with the result” that a state court cannot deny ballot access to a candidate for federal office, while recognizing that “our colleagues writing separately further agree with many of the reasons.” 

The second opinion is by Justice Amy Coney Barrett, a Republican presidential appointee, and runs just two paragraphs. She opines that it would have been sufficient for the court simply to assert that states cannot bar candidates for federal office, and stop there.

The third opinion, 13 paragraphs long, is by the three Democratic presidential appointees to the court: Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. They agree with Barrett’s de minimis advice to keep the decision simple and answer only on the barest essential question to dispose of the case.

What they especially take issue with is the majority opinion’s insistence that section 3 of the 14th Amendment can be enforced only by a statute enacted by Congress. The majority bases that on section 5 of the 14th Amendment, which gives Congress “the power to enforce this article by appropriate legislation.” In other words, the majority holds that if there is no enforcement statute on the books, there are no grounds on which to challenge an alleged insurrectionist from holding office.

To be fair, the third opinion should have been labeled, “concurring in part and dissenting in part,” because it certainly is not a resounding chorus of unanimity behind the majority’s assertions.

The dissenters have a legitimate point. Section 5 empowering Congress to enact appropriate legislation to enforce the 14th amendment, and not just section 3, is discretionary, not mandatory. The same clause appears at the end of six other constitutional amendments as boilerplate. The court minority notes that many of the rights and duties in the 14th Amendment (and other amendments) are “self-executing,” that is, enforceable on their face, and “do not depend on remedial legislation of any kind.” 

The minority justices’ greatest concern is that the majority’s opinion leaves the courts in a state of limbo so long as Congress has not enacted standards and procedures to activate and implement the Section 3 enforcement provisions.

The minority’s dissent does raise the question: Is there a readily available, off-the-shelf “self-executing” interpretation of section 3 that can be plugged-in to fill this gap? It is doubtful, since there is no common consensus as to what an insurrection or insurrectionist is, what “engage in” means and, even whether presidential candidates are covered by Section 3. The office of president is not specifically mentioned in that section (though presidential and vice presidential electors are).

The court minority’s particular lament is that, lacking an enforcement law, the judiciary is being shut-out from any action to enforce or remove the presumption of guilt. The majority’s opinion, they write, “forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.”

In perhaps the cruelest cut of all, the minority justices assert that, “By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” Who’d ever think the Supreme Court would be accused by some of its own members of being an Insurrectionist Protection League?

The minority justices quote Justice Stephen Breyer’s dissent in the 2000 Florida election case, Bush v. Gore, as follows: “What it does today, the Court should have left undone.” The court minority agrees with that sentiment in the Trump decision that by reaching out “to resolve Section 3 questions not before us,” the court forecloses future efforts to “disqualify a Presidential candidate … [in] a sensitive case crying out for judicial restraint….”

The whole tone of that concurring/dissenting opinion leaves one with the impression that the minority’s greatest lament is that the majority’s opinion shoves the Supreme Court off the stage preemptively, along with lower federal courts, even though they obviously still want to be in the play, despite Justice Breyer’s cautionary note in 2000 to the contrary.

Don Wolfensberger is a 28-year staff veteran of Congress culminating as chief-of-staff of the House Rules Committee. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000) and “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).