Monday's SCOTUS ruling was bad — but the liberal justices can't afford to linger on it

Section 3 of the Fourteenth Amendment has been hobbled. Let's not sugar-coat it. Now, though, the Dem appointees' focus has to be on all of the other cases.

The U.S. Supreme Court didn’t do the worst thing the justices could have done on Monday with its ruling keeping Donald Trump on the Colorado Republican primary ballot on Tuesday, and that’s what some on the left had to hold on to in their responses to the ruling.

I will admit that I got a bit annoyed each time that I saw someone point out — like it’s a big win — that the justices did not declare that Donald Trump did not engage in insurrection.

Just writing it out tells me everything I need to know. That is not a win for democracy. More to the point, it was, in fact, a key part of why this ruling was such a loss for democracy — and a sign of the disrespect the justices showed for the lessons of America’s past that led to the ratification of the Fourteenth Amendment.

The court’s majority in particular found an out that avoided taking the most extreme pro-Trump position while nonetheless protecting Trump and those who have supported him and continue to do so.

Chief Justice John Roberts and Justice Brett Kavanaugh joined the three justices who we most regularly see out on the right end of the debate — Justices Clarence Thomas, Sam Alito, and Neil Gorsuch — to hobble Section 3 of the Fourteenth Amendment for the foreseeable future.

Who is subject to Section 3? Ignoring the implementation of the rest of the Civil War amendments, including the rest of the Fourteenth Amendment, they tell us:

Because of their ruling, after Monday, it quite literally doesn’t matter, constitutionally, whether Trump “engaged in insurrection” disqualifying him from holding office under Section 3 of the Fourteenth Amendment because there is effectively no way to enforce Section 3 against Trump before Jan. 6, 2025.

Thomas, whose wife encouraged and supported efforts to overturn the 2020 election, participated in the case and is the only reason there was a majority to kneecap the insurrection disqualification clause.

But, because he was there — and because Roberts and Kavanaugh went along with it — that is what the five men on the Supreme Court did on Monday.

That is bad.

But, if so, what was going on with the liberals?

I generally give a lot of space to the three Democratic appointees on the court to make decisions that could seem wrong from outside the court but that very well could be important strategic decisions for a justice on the court. Remember that these three — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — are working each day to pull over two or more Republican appointees to craft a majority in any number of cases or at least to prevent worse outcomes in cases where they can’t secure a majority.

With that in mind, I took sharp interest in the discovery from Slate’s Mark Joseph Stern that the joint opinion “concurring in judgment” issued by Sotomayor, Kagan, and Jackson on Monday was not apparently initially being drafted as such. It was, instead, labeled as coming from Sotomayor and as “concurring in part and dissenting in part.”

Add in the language — from both the trio’s opinion and the partially concurring opinion of Justice Amy Coney Barrett — regarding “the majority,” as I discussed, and it does appear that the Sunday notice that opinions were expected Monday reflected a reality that there were last-minute negotiations going on to get those 20 pages where they ended up by 10 a.m. Monday.

What happened?

We might never know, but a way that I see it being a rational — again, as a strategic matter — action for the liberal justices is if their move was part of an agreement that a similar unanimity will be sought regarding the Trump immunity case.

Now, cert was just granted last week in that Trump case, merits briefing is yet to happen, and arguments won’t take place for nearly another seven weeks, so specifics almost certainly weren’t a part of any agreement. But, there could have been an informal agreement that there will be an effort to ensure there are no dissents there as well. Of course, that would mean that whatever agreement could have been reached might not ultimately pay off. But, for the liberal justices, they might have decided it was worth it since they had already lost the disputes at issue in the Fourteenth Amendment case.

In short, for those seeking accountability for Trump from the law, that is perhaps the best the trio inside the court could imagine.

For someone like me outside the court — and, I imagine, many others — it was a profound disappointment to see the Fourteenth Amendment hobbled as it was on Monday, particularly without any understanding of what might have been happening inside the court.

And yet, as Monday made clear, nothing stopped. There are more matters and cases and votes, and that was a good reminder to me that the trio of liberal justices have to be worried about how to protect their vision of the law in all of them.

There are, for example, three key matters on the court’s shadow docket that I discussed Monday: Idaho’s request to enforce their ban on gender-affirming medical care for minors while they appeal their loss below is fully briefed, the Justice Department’s request (and organizational plaintiffs’ request) to halt an order from the U.S. Court of Appeals for the Fifth Circuit that would upend immigration law by letting Texas enforce S.B. 4 is pending, and a student group’s request to block U.S. District Judge Matt Kacsmaryk from ignoring the First Amendment in his effort to allow West Texas A&M University to ban drag on campus has also been submitted to the court.

And, of course, there are all of the merits cases that the court has heard and will hear this term in which votes are potentially at play and opinions are being or will be crafted in the coming months.

In short, Monday was unquestionably disappointing, but, for better or worse, there are more fights ahead of the liberal justices — and all of us.