The Key Disagreement In The Liberal Justices’ Concurrence On The Trump Ballot Ruling

The U.S. Supreme Court issued a unanimous decision on Monday overturning a decision by the Colorado Supreme Court that found former President Donald Trump could be disqualified from appearing on the state’s ballot for his role in the Jan. 6, 2021, insurrection. But while all nine justices put their names to that decision, a bitter 5-4 divide lurked underneath.

The majority opinion allowed Trump to stay on the ballot in Colorado (and Maine and Illinois, where he had also been found ineligible) by arguing that states may only enforce Section 3 of the 14th Amendment ― the constitutional provision barring oath-breaking insurrectionists from future office ― for state offices but not federal ones. All of the justices agreed on this main point.

But three justices ― liberals Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson ― disagreed vehemently with the assertion by the five conservative justices ― John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh ― that Section 3 could only be enforced for federal offices by specific congressional legislation. Fellow conservative Amy Coney Barrett issued a separate concurrence that refrained from elaborating on her disagreement with the majority opinion, concluding “our differences are far less important than our unanimity.”

Invoking the court’s controversial decision in Bush v. Gore, which decided the razor-thin outcome of the 2000 election in favor of Republican George W. Bush, the liberal justices declared that the majority’s decision had gone too far by potentially closing off other avenues for federal courts and Congress to prevent insurrectionist candidates from gaining office.

“Even though ‘[a]ll nine Members of the Court’ agree that this independent