Supreme Court's Quiet Division on Trump Ballot Case

The Supreme Court may have ruled unanimously on the 14th Amendment challenge against former President Donald Trump, but a closer look at their opinion suggests two very different opinions on the actual case.

All nine justices agreed to reverse the Colorado Supreme Court decision removing Trump from the state's primary ballot in Monday's ruling, but just five of the justices determined that only Congress can enforce the insurrection clause in the Constitution.

"While the outcome was unanimous (supported by all nine justices), several justices—Jackson, Kagan, Sotomayor, and to a lesser extent Barrett—objected to the Court going beyond what was necessary to decide the case," former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek.

The three liberal justices on the bench—Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—agreed that no individual state should decide the eligibility of a national candidate, but rejected the idea that the clause should only apply if Congress were to enact a particular legislation pursuant to another section of the 14th Amendment.

Justice Amy Coney Barrett, a Trump appointee, stayed out of the dispute, writing that, "In my judgment, this is not the time to amplify disagreement with stridency."

"The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writing on the Court should turn the national temperature down, not up," she wrote in a concurring opinion. "For present purposes, our differences are far less important than our unanimity."

In the unsigned majority opinion, the court said that Section 5 of the 14th Amendment, which gives Congress the "power to enforce" the insurrection clause "by appropriate legislation" is "critical" when it comes to the disqualification clause.

"Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3," the majority opinion read.

In a concurring opinion, Sotomayor, Kagan and Jackson said that although they agree that Colorado itself could not enforce Section 3 of the 14th Amendment, "we protest the majority's effort to use this case to define the limits of federal enforcement of that provision."

Quoting Chief Justice John Roberts in the bombshell Dobbs ruling, the trio said, "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more."

Matt Shapanka, a public policy and election and political law attorney at Covington & Burlington LLP, told Newsweek, "The concurrences, including from both the liberal Justices and the separate opinion from Trump appointee Justice Barrett, seem to share real concerns with the consequences of the Court's ruling that Congress must pass a law to create procedures for determining whether a candidate is an ineligible insurrectionist."

"The Court did not need to discuss federal legislation to overrule the states, and all four of the concurring justices suggest they would have simply left that question for another case," Shapanka said.

The liberals said that although the disqualification clause is "rarely needed," it serves an important role in American democracy.

"The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an 'insurrection [and] rebellion' to defend slavery," Sotomayor, Kagan and Jackson wrote. "They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President."

Levi Monagle, an attorney who represents the watchdog group Common Cause, agreed with the liberal justices in a statement shared with Newsweek.

"The Framers of our Constitution foresaw—and feared—the very situation in which this case came to be," Monagle said Monday. "That's why our Constitution was wisely designed to restrain the power of transient, inflamed majorities to protect the health and safety of our democratic system."

"Sadly, SCOTUS has chosen to chip away at the foundation of the Constitution by refusing to hold the former President accountable," he added. "To ignore this threat and to willfully undermine the constitution is to invite a coup. We now face the risk of descending into a lawless future."

Update 03/04/24, 12:30 p.m. ET This story was updated with comment from Matt Shapanka.