Why SCOTUS’ unanimous Colorado decision is really a 5-4 'bare majority' ruling: legal expert

04 March 2024

On Monday, March 4, the U.S. Supreme Court released its decision in Trump v. Anderson and struck down a Colorado Supreme Court ruling that barred Donald Trump from appearing on that state's election ballot based on Section 3 of the U.S. Constitution's 14th Amendment.

The ruling was unanimous, with three Democrat-appointed justices joining six GOP-appointed justices in shooting down the Colorado ruling and, by extension, similar Section 3-based decisions in Maine and Illinois.

Under Section 3, an "officer" who engages in "insurrection" is disqualified from running for certain positions. But the High Court ruled that the Colorado Supreme Court used Section 3 incorrectly against Trump.

Slate Mark Joseph Stern analyzes the High Court's Trump v. Anderson ruling in an article published the day the ruling came out. And he emphasizes that although the decision was technically 9-0, there were contrasts between how the Republican and Democratic justices viewed the matter.

"All nine justices have now agreed that states may not unilaterally disqualify a presidential candidate," Stern explains. "Doing so, they reasoned, would allow a handful of states to effectively determine the outcome of a presidential election, undermining the inherently national nature of both the election and the presidency itself. The Constitution's division of authority between the federal and state governments cannot permit a state's go-it-alone effort to disqualify a federal candidate who's running to represent the entire country. That, however, is where the agreement ends."

Stern elaborates, "Five justices — Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must 'prescribe' specific procedures to 'ascertain' when an individual is disqualified under the 14th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists — in just a few paragraphs of sparse reasoning — the insurrection clause cannot be enforced against office seekers."

Stern notes that the High Court's "three liberal justices wrote a separate opinion" that explains "why this reasoning fails."

"As the liberals point out," Stern writes, "the majority's sweeping Congress-only approach 'forecloses judicial enforcement' of the insurrection clause — in, for instance, the context of a criminal trial involving an insurrectionist…. Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority's overreach but declining to say more because 'the court should turn the national temperature down, not up.' So, in effect, Anderson is a 5-4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders.

Mark Joseph Stern's full Slate article is available at this link (subscription only).

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