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Hello, and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

I'm Kate Shaw.

And I'm Leah Litman. And today we are your podcast about the Supreme Court's continued efforts to read the 14th amendment out of the constitution. The Supreme Court decided the presidential disqualification case, so we are bringing you an actually expedited emergency episode to explain what they did and break it down. I think we should also use this episode to officially launch the it's time for some bad decisions segment, because. Yikes. Between the court's order in the January 6 criminal case and this decision, it's bad. And I want to be clear, like, by bad, I'm not necessarily talking about the bottom line. Conclusion in this case. Allowing states to disqualify presidential officers is complicated. But the reasoning in this decision is bad. It's really bad. And because, I don't know, at least speaking for myself, think law is a thing. And we're law professors. We think that matters in part because of what it reveals is driving the court.

If it's not awful institutionalist law professors and not the really cool law professors.

I was just so strident there.

Not the cool law professors who were never really buying into this whole institutionalist thing and are jaded and cynical by nature.

We're so naive, you guys.

So dumb ladies.

Strident. Dumb lady brain.

All right, so let's bring all that to bear on the opinion that the court issued this morning. And the bottom line, which Leah alluded to a minute ago, is that the Supreme Court said that Colorado and other states cannot disqualify Trump from the ballot under section three of the 14th Amendment. So that narrow bottom line holding was 90. It was unanimous. But the opinion is actually more like five four with respect to the court's reasoning. And that reasoning, which garnered just five votes, says that the power to disqualify insurrectionists lies only with Congress, and also that there are substantial limits on the way Congress can disqualify insurrectionists. We'll break down that opinion, which was a procureum opinion, meaning no identified author. We'll also talk about a separate writing by Justice Barrett, and then we will talk about a separate concurrence by the court's three democratic appointees, which really read.

Like a dissenting opinion had.

Really.

I know.

I keep concurrence, but they did, they did agree with the bottom line, but it was one of those violent agreement about the bottom line and disagreement about the reasoning in the majority or in the procurement opinion.

Well, let's talk about that procureium opinion. So it holds, as we predicted coming out of the oral argument, that states lack the authority to enforce section three of the 14th Amendment against federal officers, especially, maybe only it's not entirely clear when those federal officers are also presidential candidates.

But then it goes further to opine that history and tradition and text, and maybe all of the things make clear that only Congress can enforce section three and only by remedial legislation that the Supreme Court deems congruent and proportional.

Can I just stop you for a minute?

Yeah.

This was a section three opinion that I think I'm going to use to teach section five of the 14th Amendment.

Now for sure, because it actually says legitimate things about section five, namely that Congress has the primary role in enforcing the Reconstruction amendments, which is not something the court basically ever does in actual section five cases anyway.

But of course, when it gives with one hand, it takes away with the other in saying the court is going to Superintend Congress's exercise of that enforcement authority.

This is exactly like the Fifth Circuit's reasoning in the CFEB case, where they're like, Congress's authority to make appropriations is so exclusive, we court are going to tell Congress how they have to exercise that authority. And here the Supreme Court is saying Congress's power under the Reconstruction amendments is so authoritative, right, so primary, we Supreme Court are going to tell Congress how it gets to exercise that power, because it seems like the court is effectively ruling out the possibility and the permissibility of a majority of congressional representatives refusing to seat someone who's been elected to office if the representatives believe that person is an insurrectionist. Like that seems to be a key dividing line between the five justices in the procureum opinion and the others. I should note, I have seen some people suggest the court didn't actually rule that out or require Congress to act via legislation here. But we'll go through the passages in the opinion that at least I think are indicative of that view.

And I am not in the business of saying that we told you so, except when I am in the business of saying that we told you so. And I just want to say we did tell you so. And because I am someone who likes receipts, I brought some today.

So let's roll some clips when Jason Murray took the lectern, based on the various colloquies between Murray and the justices, we are pretty convinced that the court is going to reverse the Colorado Supreme Court on the ground that states cannot disqualify federal officials, or perhaps just the president, absent congressional authorization to do so. This is a little different from any of the arguments Mitchell made, though it's related to some of them. So we're going to flesh that out.

And we should note that it's not clear how exactly the court will justify this new air quotes rule that states can't disqualify federal office holders absent congressional authorization. But it does seem like that is exactly the direction that they're headed in. So despite calling this, I think I'm still pretty triggered and offended by this opinion. So it is actually worse than we thought it was, don't you think?

I agree. Like Melissa, you brought the receipts. The court did not bring the receipts, the timeline, or the law screenshots or anything. Or the law.

Yeah. So not surprising as a bottom line outcome, but nevertheless disappointing in particular in reasoning. And to go back to something that we said a couple of minutes ago, even when the court behaves in what really feel like unprincipled ways, we continue to think it's important to try to hold them to higher standards. And so we're going to walk through some of the acrobatics that the court performed in order to, first, get Trump back on or to remain on the ballot. And second, and more egregiously, in some ways, to make it harder to disqualify insurrectionists, including Trump, going forward. So, understanding these inconsistencies and the court's pretty incoherent rationales helps underscore a point the democratic appointees made in their separate writing, which is that they accuse the court of, quote, deciding novel constitutional questions to insulate this court and petitioner from future controversy. Close quote. And the petitioner, to be clear, is Donald Trump here?

To be clear, and to be clear, the democratic appointees are basically saying that this court is in the bag for Donald Trump. That's the big mean. That concurrence, dissent was ready and loaded for bear because they made really clear that we all should take note, especially on the heels of the court's recent decision to grant Sir Shari in the Trump immunity appeal related to the criminal case arising out of January 6 that jeopardizes the possibility of a trial before the election, that we ought to understand everything the court is doing as in service of Donald Trump. Like this is the committee to reelect the president.

And they are creepy, some more than others. The democratic appointees also expressed concern about how, quote, the majority shuts the door on other potential means of federal enforcement, end quote. Of section three. Okay, so as promised, we are going to walk through the problems with the reasoning in this opinion. First, again, as a kind of top line, the court has, taking a phrase from Sam alito, basically shadow, banned and content moderated the 14th Amendment out of the Constitution here. Specifically, section three of the 14th Amendment, because the court said federal office holders can be disqualified from office if Congress passes legislation under section five. And these are the passages that I had in mind when I was saying it seems like the procurium kind of rules out the possibility of other methods of Congress disqualifying federal office holders. So here's one quote. The Constitution empowers Congress to prescribe how these determinations should be made. The relevant provision is section five, which enables Congress, subject, of course, to judicial review, to pass appropriate legislation to enforce the 14th Amendment, end quote. The court also adds, quote, Congress's section five power is critical when it comes to section three, end quote.

I should note that in a really weird sentence, the court also says that in the years following ratification, the House and Senate exercised their unique powers under article one to adjudicate challenges, contending that certain prospective or sitting members could not take or retain their seats due to section three, end quote. Which seems to acknowledge that Congress may have sometimes done this without authorizing legislation. But those other passages in the procureium opinion led, I think, me, as well as the joint concurrence by the democratic appointees, as well as a Barrett concurrence to say the majority decided that federal legislation is necessary to enforce section three. And in one of the more, I think, orwellian passages of the procureium opinion, the court says that, quote, the text of section three reinforces these conclusions when the text kind of says the opposite, like the text does not reinforce that conclusion. The text of section three contains a prohibition, just like the text of section one does. Section one contains the prohibitions on states denying equal protection and depriving people of liberty without due process, and section one is enforceable. That prohibition is enforceable even if Congress doesn't enact statutes, and section three says nothing about affirmatively requiring congressional legislation.

To the extent that it says anything about Congress, it suggests that legislation isn't actually needed to enforce section three. And yet the court uses language in section three that undermines its conclusion and insists that the language actually supports its conclusion. So the court says, quote, its final sentence empowers Congress to, quote, remove any section three disability by a two thirds vote of each house. The text imposes no limits on that power, and Congress may exercise it anytime, as the respondents concede, end quote.

Melissa just made a face that, like.

I wish our listeners could see the math ain't mathing.

Exactly. And to break down exactly how it's not mathing, the argument that the pc opinion offers just truly makes no sense. So, as we talked about in our previous coverage of this case, and as Melissa just described, the language in section three says that Congress can remove a disability by a two thirds vote. This, to our mind at least, makes it less likely, in fact, virtually incoherent, to claim that section three's prohibition on insurrectionists holding office has no teeth. Absent congressional legislation, the provision that grants the power to remove a disqualification by a two thirds vote clearly contemplates that disqualification already exists. Otherwise, the two thirds vote to remove the disqualification wouldn't be necessary. What am I missing?

No, you're not missing anything. This is an example of what I mean when I say the court is no law. Just vibes, right? They took some superficial legal thing, the text of section three, and just declared that it means the exact opposite of what it seems to logically mean. Because if Congress can only remove a disqualification by two thirds vote of each house, why would the amendment give a simple majority of Congress the power to block disqualification at all, since a simple majority could block the passage of legislation like, that's why this is orwellian.

The opinion is replete with references that minimize section three, which I think is really interesting as well. For example, the majority says this, quote, it section three was designed to help ensure an enduring union by preventing former confederates from returning to power in the aftermath of the civil war. End quote.

No friends.

Sorry. It's about insurrectionists. Like, just full stop insurrectionists who could be former Confederates but could also be other people conspiring.

It says insurrection government.

It says insurrectionists.

This isn't textualism. It's just some other thing.

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So there are those issues with the court's reading of the text of the 14th amendment. And another thing that I think is particularly galling about, the procureium opinion really gets to a point that we talked about with Sherilyn Eiffel on a recent episode. And Sherilyn Eiffel is someone who actually knows some things about the 14th Amendment, unlike the individuals who joined this procurement opinion. And that issue is this. The court's decision is especially egregious in light of what this court has done with section five and Congress's power to enact legislation to enforce the 14th Amendment. This is something we were alluding to at the outset of this episode. So the opinion repeatedly invokes the centrality of section five, that is, the enforcement clause to the design of the 14th Amendment.

There have been a litany of cases, however, in which the Supreme Court has actually invalidated legislation that Congress enacted under section five of the 14th Amendment on the view that section five severely limits the kinds of laws that Congress can enact under section five. Do you see the circularity here? So here are some examples. In the civil rights cases, the court in the 1880s struck down the First Civil Rights act of 1875 on the ground that section five only authorized Congress to take steps to limit state action, not private acts of discrimination. Likewise, in city of Bernie versus Flores, a more recent case, the court struck down the religious Freedom Restoration act as applied to the states on the view that it was not congruent and proportional remedial legislation. In Kimmel and Garrett, the court struck down provisions of the ADA and the ADEa as applied to the states on a similar view, in United States versus Morrison, it struck down section 13 981 of the Violence against Women act on the view that it applied to private conduct as opposed to state action. In Coleman, it struck down parts of the FMLA as applied to the states.

In Allen versus Cooper, it did the same thing in the context of a patent and copyright act. And in Shelby county versus holder, it concluded that the VRA, though not a section five case, was not congruent and proportional in the context of remedying rampant voter discrimination. So this court, at every turn, has really tried to limit the force of the reconstruction amendments and Congress's constitutionally conferred authority to enforce the requirements of the Reconstruction amendments. And in many of these cases, the court has said that any legislation that Congress enacts under section five must be congruent and proportional to a pattern of constitutional violations. And the court has said that this places more restrictions on Congress's power to enact laws under section five than when Congress enacts laws under other powers that are contained in article one. This has led them then, to be incredibly trigger happy when shooting down congressional legislation that's authorized under section five of the 14th Amendment and again to limit the force of the 14th Amendment and the other Reconstruction amendments.

And now in the disqualification case, the Supreme Court comes along and says, because Congress has not enacted legislation, that means section three is unenforceable. They are acting as if Congress's failure to adopt legislation is entitled to more respect and more deference from the court than when Congress actually does enact legislation.

Pick a lane.

And this turns the 14th Amendment, in my view, into like a schrodinger's amendment, of congressional power that exists, but also doesn't really exist. Like the Court is saying, the substantive provisions of section three are unenforceable and effectively not the law because Congress hasn't done anything. But in all the previous cases, the court has denied Congress's power to enforce the amendments, making the 14th Amendment less robust when Congress actually does something.

Another thing that the opinion made me think about was the possibility that the Reconstruction amendments in general contain some sort of SCOTUS supremacy principle, which is that the court gets to strike down congressional legislation to enforce the amendments in all the cases that Melissa was just talking about, but also can say that Congress's failure to enact legislation means that other provisions are unenforceable and that the Supreme Court won't decide whether someone is barred from office under section three absent congressional action. And this is all very difficult to square with the history of the Reconstruction amendments, because Congress, when enacting those amendments, was very, very skeptical, and rightly so of the Supreme Court, and pretty clearly would never have wanted the Supreme Court to have this kind of authority.

And I want to give a concrete example, which the court had the audacity to include in their opinion in this case, of the hypocrisy and how the court treats actual legislation enacted under section five compared to the absence of legislation. So they cite legislative history of the 14th Amendment, which Neil Gorsuch is apparently now fine with, quoting a senator about Congress's role in enforcing the amendment, and then the court notes that, quote, the enforcement mechanism the senator championed was later enacted as part of the Enforcement act of 1870, end quote. The opinion also mentions this a second time, quote. Instead, it is Congress that has long given effect to section three. Shortly after ratification of the amendment, Congress enacted the Enforcement act of 1870, end quote. Well, guess what the Supreme Court did with the Enforcement act of 1870? The court.

Oh, details, Leo, details.

The court effectively took the teeth out of right and nullified the force of the Enforcement act by reading it so narrowly. They read it to be toothless against the threats of racial violence from the KKK. That was the case Krukshank versus United States, which we talked about on our episode with Sherilyn. That case involved the Enforcement act of 1870. The case reinvigorated the Klan and helped facilitate the end of reconstruction because the opinion said that a white militia attacking black freedmen at a courthouse surrounding the contested election in Louisiana was not something that could be prosecuted under the Enforcement act, because, again, they would not give Congress the actual authority. They wouldn't let Congress to actually enforce the Reconstruction amendments. So the Supreme Court has hamstrung Congress from enforcing the amendments. At the same time, it is now insisting that it must be Congress who enforces the amendments. And it's just, in my view, completely shameless.

But on. Yes, yes, shameless. And on brand the bar, as you say, is hell. Correct. So I think this is as good a moment as any to bring up the joint opinion concurring in the judgment, but essentially dissenting from everything else that the democratic appointees wrote. So here's one of the lines that I wanted to quote, quote. In a case involving no federal action whatsoever, the court opines on how federal enforcement of section three must proceed. Congress, the majority says, must enact legislation under section five. These musings are as inadequately supported as they are gratuitous. End quote. I love zero fucks Elena Kagan.

I know.

Absolutely. Also zero fucks Katanji Brown Jackson, and zero fucks Sonia Sotomayor.

All of it. I love it. Know, my one note is that they maybe should have captioned the opinion concurring in the judgment, comma, but also dissenting from all of the bullshit.

Oh, that would have been great. Let's get that. Let's make that happen. Let's make Supreme Court dissents great again. Another thing that struck me in reading all of these opinions is that the court is selectively toggling back and forth between whittling down congressional legislation and ramping up the absence of legislation and it all reminds me of Pam Carlin's terrific 2012 Harvard Law review forward, democracy and disdain. And that forward began with the line, quote, sometimes the justices seem barely able to hide their disdain for the other branches of government, end quote. And there Carlin argued that the current court combines a very robust view of its interpretive supremacy with a strikingly restrictive view of Congress's enumerated powers. And she continues, the Roberts court's approach reflects a combination of institutional distrust. The court is better at determining constitutional meaning and substantive distrust. Congressional power must be held in check. Basically, when the court is talking about Congress, it is reliably using Congress as a punching bag. And in doing so, it arrogates power to the court at the expense of Congress, which we've seen over and over and over again. This is a recurring theme. We see this in the administrative law cases, and now we're seeing it here.

Only the stakes could not be higher because it's not just whittling away Congress's power and arrogating power to the court, it's arrogating power to the court so that it can serve this prospective presidential campaign.

So the court purports to basically center Congress as the key actor here. But in all of these ways, as you just mentioned, Melissa, the court is really centering itself. And so let's talk a little bit about how. So the court basically says in the procurement opinion, disqualification by Congress has to be the kind of primary method or the sole method of enforcing the 14th amendment. But that disqualification, according to the court, has to happen in very particular ways. So how specifically does the court seem to think this disqualification by Congress has to happen? So, one, by legislation and legislation that, in the court's estimation, is sufficiently remedial under section five that it would satisfy the court's congruence and proportionality test. So it would enforce section three as the court understands section three. But then there are also all these questions that Leah alluded to a couple of minutes ago about whether the court's reasoning here actually upsets long settled practice in which Congress gets to determine the qualifications of its own members. So there is historical practice of Congress refusing to seat insurrectionists, including in an episode the court cites involving John Christie. There was no legislation in that exclusion.

Does the court seem to think that in the future an actual bill passed by both houses and signed by the president will be required before that? I think the same questions arise with respect to expulsion of a member, which under the Constitution, each house can do with a two thirds vote. That happened with New York Representative George Santos just a couple of months ago. Does the court here also say that if a sitting member engaged in insurrection, there would first need to be legislation before a House could expel that member for insurrection? And the last thing I think the court leaves somewhat unclear is whether Congress, in the joint session of Congress that was the target of the January 6 attack, whether Congress could potentially disqualify an insurrectionist as part of its counting function. I think no, under the court's reasoning. So these are all ways that Congress is actually constrained, even as the court is at pain, to suggest that Congress is in the driver's seat.

Yeah. And even if Congress enacted legislation, it is possible that this court would say the legislation was not sufficiently remedial, as Kate was alluding to. So imagine if Congress enacted a law disqualifying Trump on the ground that they thought Trump was an insurrectionist. My guess is there are at least two votes on this court to strike down that legislation on the ground that it wouldn't be consistent with this Supreme Court's understanding of section three and therefore would not be remedial.

There's also some discussion about the actual events that are at the heart of the case. This is the most the five justices who joined the procurement opinion were willing to say about the events of January 6, 2021. Quote, these voters, whom we refer to as the respondents, contend that after former President Trump's defeat in the 2020 presidential election, he disrupted the peaceful transfer of power by intentionally organizing and inciting the crowd that breached the Capitol as Congress met to certify the election results on January 6, 2021. End quote. That's it. And again, I think you have to read that in conjunction with its grant of Sarsiawari, where it seems to credit the idea that maybe there is some room for disagreement about whether or not Donald Trump's actions were allegedly in the scope of his office or not. That's their language, not mine. But again, it just seems like they are really going out of their way to sort of limit the discussion of what happened on January 6 and to minimize its importance going forward, both in this election and generally as a matter of constitutional law. Which leaves it to the three democratically appointed justices in their concurrence, dissent, to actually describe what is in fact at stake.

And they do, and we'll turn to that writing in just a minute. But maybe like a couple more beats on the procurement opinion first, and one is that there are these other kind of dubious attempts at support that the opinion offers. So there is this gem that is worth quoting, and that is, quote, nor have the respondents identified any tradition of state enforcement of section three against federal office holders or candidates in the years following ratification of the 14th amendment. Such a lack of historical precedent is generally a telling indication of a severe constitutional problem with the asserted power. And I just have to ask, is.

That really what it's a telling indication of?

Or might it also have something to do with the happy fact that until recently we just haven't had presidents attempt to interfere with the peaceful transition of power, and thus there just hasn't been reason to invoke this provision? Might that be why we don't have a documented history of the sort the court seems to be looking for?

I think you're asking, Kate, whether this opinion is willfully blind or deliberately obtuse. I'm going to say both. It's also completely clueless and perhaps even deliberately obtuse about the highly federalized nature of federal elections already. So the court makes a lot of the fact that it would never allow a, quote, unquote, patchwork of ballots that would result from state enforcement. Doing so would, quote unquote, sever the direct link that the framers found so critical between the national government and the people of the United States, end quote. Now, we predicted that they would never countenance this idea of a patchwork of ballots, but this reasoning is frankly just absolutely bonkers because we already give the states enormous leeway in running elections, and all they have to say is, for this election, for the ballot, it's really important that we have the same candidates beyond the ballot, whatever. But the idea that we're just going to base this in the view that all elections have to be sort of nationally governed and uniform, they themselves don't even do that because they are constantly allowing and crediting suppressive voter laws that make it difficult for certain groups in one state to exercise the ballot, whereas it's perfectly fine for those groups in another state.

So we already have a patchwork of electoral policies throughout the country, and we already give the states enormous leeway in how they run their elections, including elections for federal office. So it is a little late to be stating that there is a broad constitutional infirmity about the prospect of patchwork election policies. We already have that. There is a reason, I think, to be concerned in this instance. But across the board, this court has already blessed the prospect of numerous voting laws that are a patchwork all across the country.

So in addition to waking up to some of the concerns with the federalized system of elections, something else dawned on the court in this opinion, which is that maybe multi factor legal tests are okay, because for a bunch of people who gave justice Breyer endless amounts of shit for adopting multifactor legal tests, all of a sudden they seem just fine with know. The opinion says, quote, it is the combination of all of these reasons set forth in this opinion that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the court unanimously reaches, end quote. You know who thought this decision was well reasoned, though? Donald Trump. And he knows some things about the law. So let's play his reaction here.

Very important decision, were very well crafted, and I think it will go a long way toward bringing our country together, which our country needs. And they worked long, they worked hard, and frankly, they worked very quickly on something that will be spoken about 100 years from now and 200 years from now. Extremely important.

And then in another statement, he capitalized and emphasized on the fact that the courts seem to be together on this issue as far as the bottom line results. So we'll play that here as well.

So just to finish, I have great respect for the Supreme Court, and I want to just thank them for working so quickly and so diligently and so brilliantly. And again, this is a unifying factor. Everybody now is together. And they can go after me as a politician, they can go after me with votes, but they're not going to go after me with that kind of lawsuit that takes somebody out of a race who's leading in this case. But even if the person wasn't leading, and I want to thank you all for being here.

Tell me you didn't read the concurrences without telling me you didn't read the.

Exactly.

Exactly. And speaking of the concurrences, we are now going to go on to discuss the separate writing by Justice Barrett. This is in part a concurring opinion and in part a concurrence in the judgment. What that means is she did not join some of the reasoning in the procurium opinion. Specifically, she did not join the parts of the opinion that seem to, in various passages, require congressional legislation to authorize disqualification.

I mean, the TLDR of this opinion is, I'm a cool girl. Pick me, fellas. Right? That's all. What else was there to say about that? I mean, basically, she says, in this opinion, like the other ladies on this court, I agree that this procurement opinion is getting way ahead of itself. We could just decide here that the states can't enforce section three against a presidential candidate, but instead of actually joining the other women on the court in a show of solidarity and maybe explaining why this court is completely high on its own supply. I will instead bash my fellow sisters and big up Brodis, because feminism, these bitches have turned the temperature up. Way up, and I will not have it. I will not have it. Amy Barrett out. That's the opinion.

That sounds like an overstatement. Melissa just did a very faithful paraphrase of exactly what Amy Coney Barrett wrote. So I'm actually going to quote it here, and you'll see how similar it is. So she basically says, after noting that, again, she would have decided the case just by narrowly holding, that Colorado couldn't disqualify Trump, quote, the majority's choice of a different path leaves the remaining justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridentcy.

The court has you harpies.

That was implicit, but definitely there.

And she goes on. The court has settled a politically charged issue in the volatile season of a presidential election, particularly in this circumstance. Writings on this 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.

Time the fuck out. How is it that she agrees that Brodis is the problem, but she's beating up on the other women?

This is so on brand, both for her and for the political context in which she was appointed. Here you have Justice Ginsburg's replacement calling her now three female colleagues strident. And it exemplifies the hollowness of the brand of identity politics that the Republicans traffic in, where feminism means just appointing women to the Supreme Court who will lecture the other harpies about being overly strident in their efforts to warn democracy about what this court is doing. She's weaponizing her gender and her presence on the court against her female colleagues who are attempting to inform the public about what the court has done. And nothing. There are very few things that annoy me more than women giving cover to regressive gender politics and dynamics, which she seems to just twirl in. Like, that is her metier, if you will, and also, girl, if you think this opinion is strident. Have you read anything by the justice you clerked for, Antonin Scalia, who literally said he would, quote, hide his head in a bag rather than join a majority opinion of the court?

Or for that matter, he can't be.

Okay, okay. You can only be strident if you.

Have ovaries, you know who else isn't strident? Neil Gorsuch. It's called legislation. Or Sam Alito, who in Fulton wrote a concurrence where he said, the court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this court to stand up for the first amendment to every right to be disappointed, as am.

I. Nope, that's a sharp wit. A sharp pen. That's not pride. And safe. Nope, totally different.

Sam Alito, famous for his sharp wit.

Okay, that was really targeted Scalia. Yeah, I don't know what. Not Alito.

I did want to say that this writing confirms something I have ascribed to Justice Barrett before, and that is her very strong justice Dolores Umbridge vibes. Like, the real danger is not that Voldemort might be about to return, but that people are getting worked up about the fact that Voldemort might return and are trying to guard against Voldemort's return. She's literally saying, like, you must be civilized and speak in a civil tone. When the coup starts, ladies, the insurrection must be met with civility.

This is big, wizzing, gamut energy, I have to say.

It has. Please don't say we're mad. Right. Elements to it. Like, I'm not mad. Please don't put in the newspaper that I got mad kind of undercurrents. And it is consistent with what I think of as a pattern now of her showing flashes of, these bros are crazy, and I'm not one of these scotus bros. Brodis scrotus. But at the same time, failing to actually meaningfully materially distinguish herself from them. Because she's right, of course, that the procurement went further than necessary. But then she turns around and tries to shame her three female colleagues, who explain why the court shouldn't have done more than necessary to resolve the case.

Ladies, when our overlords speak, you're supposed to be decorous and civil. Smile, smile, smile more.

Sonya, Elena and Katanji smile more. And even though I think she wants to be saying that this case is evidence that the court is great and totally about the law, the thing she emphasizes is the fact that the justices agree, quote, on the outcome, like, not on the law or the legal reasoning. Apparently, outcomes are what matters now. Like, who knew? And the end of the majority procurement opinion has some of this, too.

Yeah, the end of the majority opinion says, quote, all nine members of the court agree with that result, end quote. Like, leaving aside the fact that there are some major disagreements, like, they're all in agreement with that in mind. For some actual reason unclear to anyone else on the court, Justices Sotomayor, Kagan, and Jackson issued a joint concurrence that concurred in the judgment, but basically dissented from all of the other, quote, unquote, like, that's the legal term, which is to say that this writing is joint in the sense that it doesn't identify a single author, and it's a concurrence in the judgment because they refuse to join any other parts of the procurement opinion. And so to our mind, this is really a dissent, and I'm going to treat it like a dissent.

So I wanted to note one thing about this, which is Mark Joseph Stern of Slate, who is fantastic, noted that if you double click on the opinion where it says JJ at the top and copy paste it or control f, the line actually reads Sotomayor J. Concurring in part and dissenting in part, and if you do a control f search for that. Exactly. It highlights the same line it appears in the metadata. So that provides some important legislative history about how this began and took shape.

Fascinating. Yeah. I also wonder if Barrett was trying to get them, like, whether you sort of see that the results of some protracted negotiation on their side of the nine, that they. Then the knitting circle, things really broke down in their efforts.

Apparently someone got shit with a knitting needle. Yeah.

We'Ll never do that again. But that's fascinating. I hadn't seen that stern catch. That's really, really interesting. Okay, so whatever it is, partial concurrence, partial dissent, concurrence in the judgment, it starts with a bang. And that bang is that it cites the chief justice's concurrence in dobbs, the case, of course, that overruled Roe, but where the chief justice would have proceeded more incrementally than his far more venturesome colleagues. And here's the quote. If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. So wherefore that humility and minimalism, John Roberts, seems to be the question that the rhetorical question, at least, that the concurs begin with.

I think we were all so exercised about the majority opinion and dots that we really skipped over the chief justice's concurrence, in part because it was so completely pointless. But that what you just read, if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. That is so like the way to stop discriminating on the basis.

Exactly.

Discriminating. Does this guy have another lane?

He has a template, and he just inserts.

What's your grievance like, insert here. So that's how the three justices, Kagan, Sotomayor, and Jackson, start off. And let me just say, the tea continues to steep and get hot. So the next thing they, like, I think it's actually the next paragraph, is they call Donald Trump. Not explicitly, but it is very definitely implied, a quote, unquote, oath breaking insurrectionist. And there is no allegedly or anything like that. They're just like, oath breaking insurrectionists. And to which I say, maybe accurate. Gif. Here's the exact quote.

Quote.

In this case, the court must decide whether Colorado may keep a presidential candidate off the ballot on the ground that he is an oath breaking insurrectionist and thus disqualified from holding federal office under section three of the 14th amendment. End quote.

Ladies, I should be clear that that emphasis that Melissa added to the passage.

Is also evident in the metadata of the metadata. And then here comes Professor Katanji Brown Jackson with her PhD dissertation on the reconstruction amendments, noting that, quote, the contrary conclusion that a handful of officials in a few states could decide the nation's next president would be especially surprising with respect to section three. The reconstruction amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty. Section three marked the first time the constitution placed substantive limits on a state's authority to choose its own officials. I just want to say, and she goes on to say that by itself is how we should decide this case. But I love that she's sort of sticking it in there, like, I am going to educate this entire populace about the reconstruction amendments at every possible turn. I have every possible chance I can get. It is also worth noting that this opinion contains the only reference to the importance of section three in all of the writings that were issued on this case. The joint concurs. Dissenters say, quote, section three serves an important, though rarely needed, role in our democracy. End quote.

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Just kind of ticking through the different elements to this joint writing. The closing section of this joint concurrence in the judgment dissent includes them calling this opinion in Trump versus Anderson, basically Bush versus Gore 2.0. So they write, quote, what it does today, the court should have left undone, end quote. And that is quoting Bush versus Gore, Justice Breyer's dissenting opinion. That is the opening passage to their concluding section.

And the separate writing also notes that in addition to the hurdles that the opinion erects to congressional enforcement of section three, it also disables courts from enforcing section three, both as to ballot access, specifically as in this case. But it also offers this kind of, I found, chilling example, which is the writing explains that the decision, quote, forecloses judicial enforcement of section three, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. So impossible to know who they might have in mind as an insurrectionist who somehow ascends to high office and then deploys a prosecutorial apparatus to target enemies. You might think that under those just complete. No idea, no one springs to mind. But it's still a very dystopic vision, and one in which a court would be. It seems disabled from considering an argument that the insurrectionist actually is without constitutional authority to hold the office that has unleashed the prosecution. So I don't think that was a trivial or incidental example that the concurring opinion trotted out in terms of what the consequences of this ruling might be. On that note.

Well, I mean, we expected it, but we didn't expect this.

Yeah, again, expected the result and the kind of hollowness of the reasoning, but they went further than they had to, and that they had telegraphed at argument.

In terms of maybe final thoughts, if you want to offer any before we wrap. I mean, one, just because we haven't said this, it was pretty quick. The opinion, it could have been quicker. I actually suspect that the debates among.

The ladies, given the shitty reasoning, it definitely could have been quicker. Right.

For a Supreme Court opinion, that's pretty short. And that's 20 with.

And that's all the opinions combined.

Yeah. So it's whatever, three and a half weeks that is relatively quick, maybe more protracted because of these discussions about how the separate writings would be characterized and who would sort of join forces and how. But I also just think that that's an important lesson for the immunity argument, which is like, it was not an accident that the Supreme Court issued this opinion on Monday before Super Tuesday because it understood that there were imperatives to get the opinion out before the election. Even though Colorado is a vote by mail state, most people have already voted. The ballot had Trump's name on it. But at know atmospherically, it was really important for them not to continue to sit on this after Super Tuesday. And they got it and they moved expedition.

Like the immunity decision. Who really needs to know that?

Right? Exactly.

This is the fear because there's not a date certain. I don't know exactly how to force their appreciation of the urgency and the absence of a date certain, like Bush v. Gore.

There was the urgency, Kate, they know.

The timeline Judge Chuckin established. They can count.

It's not that they know what's going on. This is purposeful.

Well, we'll see once the argument happens. I'm just saying that the message from all quarters to them has to be that it is every bit as important in many ways more important, because, again, the voting was already happening in Colorado. The court still has the power to control whether we ever see a trial, which if they care a great deal about America's voters being able to participate in a nationwide election to select the chief executive, which is on display here, though, that should counsel in favor of letting there be a trial and a verdict. And somehow their very logic here seems to my mind, to counsel in favor of speed. And that I just think is an important message. Not that I'm saying they will hear it, but that it's at least worth voicing.

Yes, I agree.

Well, can I offer another message? My favorite Pollyanna. Okay, I'm going to come back to. Do you remember all those rumors around Bushby Gore about how Sandra Day O'Connor was allegedly at some dinner party and when she found out?

I think that's confirmed.

Yeah.

Yes.

Okay. Was it? Yeah. Okay. She expressed dismay because she'd been planning to resign or retire from the court and this Al Gore winning would have thwarted her plans. Have we given serious consideration to the fact that there are at least two justices who may have real interests in seeing Donald Trump be elected? One, someone whose wife is apparently very close at least has text messages that are insurrectionist adjacent. So that might be an issue. But just as a general matter, there are two septenarian justices who might want to step down under a republican president and have their replacements be movement conservatives just like them. And for that reason, maybe they're just not that inclined to throw a wrench in the works that subjects their preferred candidate to a criminal trial where he might be found guilty and be wearing an orange jumpsuit on January 20.

And all of the Fifth Circuit judges who have been performing endless antics in order to audition for this role. You haven't done enough. Do more, sirs. Do more.

I mean, it's truly dystopian. I mean, Kate, I don't think this is a court that is going to be built for speed. I think it's built for something.

Those two obviously are a lost cause in every way.

I see the chief justice, too. I mean, he's in his 60s also. Don't you think the chief justice wrote this? I mean, I thought Dobbs opinion, the Dobbs quote, I think she wrote the.

PC and Kagan wrote the concurrency end. Whatever it is. Yeah. Do you disagree with it?

Although the metadata suggests that justice.

No, metadata suggests Justice Sotomayor. My guess is Justice Sotomayor wrote the initial draft, and then Kagan punched it. And Justice Jackson. Justice Kagan added a star footnote that was like, fuck you, clowns. And Justice Sotomayor and Jackson were like, how about we edit this to, like, the court went further than it needed to and was, like, gratuitous. Anyways, that's how I imagine it.

I thought it was really snarky. I thought it was, like, super. Also, can I just say, can we talk a little about Twitter for a minute? So I wrote that. I thought the dissent concurrence was snarky, and someone was like, I wish they would stop doing snark and save our democracy. And I'm like, excuse me, ma'am, can you count, like, three people? You know how we could save our democracy? By actually doing a lot to get people out and voting and putting the court on the ballot and recognizing that this court is not an inevitability. This is something we got because people sat at home in 2016 and Donald Trump got elected.

So you're saying decorum is not going to get us there, Melissa, obviously.

Almost like civility and whining about Joe Biden's age also won't do that.

Seriously. It's only because I had to log on to meet you guys. I didn't write back like, what are you talking about? Do you know how to count? Do you know how government works? What are three people in the minority going to do to save democracy? Like, get three of your friends and go to the polls and then get three of their friends and take them to the polls and get a bunch of college kids and go to the polls.

That's where this opinion leaves us. I mean, it does. Which, again, is not to say the court. I think, obviously, attention is going to shift to the immunity case. And that case is not disconnected from actual electoral democracy. It's deeply, deeply connected. But given the track record of this court, there's no reason to be confident, which is not a reason not to urge, but it is a reason not to put all eggs, or really any eggs in that basket, and instead to.

Assume that the heart only if the.

Eggs are extra uterine. Children.

Put those in a Dropbox or.

Put them together and go through the.

HoV lane right, the 14th amendment. The court put it in a Dropbox and left it at a fire station.

So there we are. Another banger from the nation's highest court.

Only the best for us nine greatest legal minds in the country.

It's only Monday.

I'm geniuses. All right, that was grim. Let's end this. Let's end it. Okay. I'm calling it time of death. Democracy 206. Okay. Strict scrutiny is a crooked media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell. But today we have, sitting in the producer seat, one Bill Pollock. Thank you, Bill, for subbing in for Melody. We get audio support from Kyle Seglin and Charlote Landis, with music by Eddie Cooper and production support from Madeline Haringer and Ari Schwartz. And if you haven't already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.