This text appeared in the ‘Top Story’ email newsletter sent on March 8, 2024.
Unanimity in keeping Trump on Colorado’s ballot wasn’t enough to ward off criticisms of the Supreme Court after its landmark Trump v. Anderson ruling earlier this week.
While some highlighted how liberals and conservatives voted together, some on the left followed the decision by calling for reform and even asking for Justice Sonia Sotomayor’s resignation.
“EXPAND THE COURT,” read an X post from the left-leaning Women’s March. Demand Justice, founded by former Obama adviser Brian Fallon, similarly called for court packing without commenting on the specifics of the decision.
The decision avoided sweeping decisions for or against Trump by striking down state’s authority to disqualify candidates for federal office, and also declining to say whether Trump was the type of officer who could be disqualified under Section 3 of the 14th Amendment. Instead, it clarified that Congress has authority over Section 3’s enforcement—raising speculation about potential chaos before the inauguration.
President Joe Biden added to the pressure when he used the State of the Union to warn Supreme Court justices that they could face voters’ retaliation for their decision in Dobbs, which overturned Roe v Wade. Talk show hosts Stephen Colbert and Jon Stewart also attacked the court with the latter suggesting they encouraged insurrectionists.
The landmark decision in Trump v. Anderson came as the court faced lower trust after its decision in Dobbs, as well as mounting calls for reform, accusations of partisanship, and critical words from people like Senator Chuck Schumer (D-N.Y.).
Future Trump-related cases, such as his presidential immunity appeal, will likely bring the court under even greater scrutiny as tensions flare heading into the presidential election. Their decisions may not only impact the course of the election but also provide game-changing interpretations for constitutional issues like the separation of powers.
Presidential immunity, in particular, could be an issue that invites fiery criticism given its relation to Trump. With Trump v. Anderson, the justices were able to defer to Congress on many of the controversial issues such as whether Trump engaged in an insurrection.
April 25 is the date of oral argument in which the court will consider whether presidents enjoy immunity from criminal prosecution after they leave office. The justices could take a variety of paths in deciding the case but if they rule decisively on the immunity question, it will likely infuriate either Trump supporters or the political left.
Besides Trump’s cases, other testy legal issues are hovering over the justices. After Dobbs, the court took up several big cases, such as the Chevron and Netchoice cases, that could fundamentally alter the landscape of administrative and social media law, respectively.
Ethical scrutiny from lawmakers also appeared to prompt the justices to issue an ethics code that was nonetheless criticized for allegedly lacking an effective enforcement mechanism. Justices Thomas Alito, Clarence Thomas, Ketanji Brown Jackson, and Sotomayor have all faced ethical scrutiny in recent months.
Carrie Severino, a former clerk for Justice Thomas, defended the court on X by saying that calls for court packing after the 9-0 decision showed how “unhinged the Left has become toward SCOTUS.” She also chided Biden for trying to “threaten” the justices and argued he “should actually read the opinion [in Dobbs] instead of demagoguing and trying to undermine the Supreme Court.’
Justices Barrett and Sotomayor presented the court as non-partisan when they gave a joint talk in February on how to “disagree better.” Barrett, however, seemed critical of her colleagues’ comments in Trump v. Anderson as she appeared to criticize Sotomayor and the other two liberal justices for “stridency” and not turning the national temperature down with their rhetoric.
Jonathan Chait, a writer for New York Magazine, suggested that Sotomayor’s and Barrett’s talk presented a “myth” that was the source of their “power and authority.” He seemed to join fellow liberal writer Josh Barro in calling for Sotomayor’s resignation, asking “whether she’ll play the game or pretend it isn’t happening.”
Sotomayor herself appeared more resistant to the court’s opinion in Trump v. Anderson than the court’s presentation of unanimity indicated. Following the decision, many pointed out how the opinion’s metadata showed Sotomayor explicitly dissenting in part, rather than merely issuing a concurrence while criticizing aspects of the majority’s opinion.
The three liberal justices accused the majority of attempting “to insulate all alleged insurrectionists from future challenges to their holding federal office.” Their opinion, which criticized the majority’s focus on congressional enforcement, prompted speculation that the court was more divided than the unanimous vote count suggested.
Stanford Law Professor Pamela Karlan told The New York Times that “the court’s effort to appear apolitical was undercut by the decision of the per curiam majority to go beyond the minimalist rationale of the concurrence—that there are special considerations with respect to the presidency that counsel against having state courts enforcing Section 3—that could have gotten Justices Sotomayor, Kagan and Jackson to sign on. And for what?”
Others praised the court. George Washington University Law Professor Jonathan Turley said on X that it “showed a divided nation that we remain bound by shared constitutional values.”
