On The Colorado Ballot Supreme Court Decision [UPDATED]

After the Supreme Court agreed to hear the Colorado case and then the immunity case, I mused that the justices made an agreement to let Trump on the ballot in Colorado, but to not grant him immunity. 

It just seemed to me they were getting enough heat about losing the public's trust  - something Chief Justice Roberts has on occasion paid attention to - that maybe they decided to go in Trump's favor in one case and that they would decide against him in the other case.  This would make them look more 'objective.'

Today, they decided for Trump.  Not only did they decide for Trump, but they did so unanimously, sort of.  I haven't read the decision carefully enough, but I've read a few articles on the decision.  

Basically the five male justices not only decided the key point - whether Trump should stay on the ballot - but they went on to reach a few other conclusions.  

The women, starting with Amy Comey Barrett who wrote:

"I join Parts I and II–B of the Court’s opinion. I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that."

Sotomayor wrote what some legal scholars characterized as a dissenting opinion disguised as a concurring opinion.  

Some extra legal considerations:

I've checked the difference between a concurrent and dissenting opinion.  Basically, a concurrent opinion agrees with the decision, but not the reasoning.  A dissenting opinion disagrees with the decision and the reasoning.  I haven't tracked down what happens if there are more than one 'decisions' and someone agrees with one, but not the others.  Does that have to be a concurrent decision?  Or a dissenting decision?  Or could it be both?

A retired attorney friend told me to look up 'dicta.'  From

"Dicta in law refers to a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation. Also referred to as dictum and judicial dicta.  A dissenting opinion is also generally considered obiter dictum."

Were the majority conclusions that Barrett criticized then dicta, because they weren't necessary to resolve the case?  Or are they legally binding?   

UNANIMOUS DECISION

SO, this was a unanimous decision.  It's important, and increasingly rare, for the Supreme Court to rule unanimously on such politically charged cases.  It's important to do so to show the court is in agreement to thwart backlash from the public.  

Chief Justice Earl Warren worked hard to get all the justices to agree on the controversial Brown v Board of Education, the landmark ruling that racially segregated public schools were not Constitutional.  From Wikipedia:

"By the early 1950s, Warren had become personally convinced that segregation was morally wrong and legally indefensible. Warren sought not only to overturn Plessy but also to have a unanimous verdict. Warren, Black, Douglas, Burton, and Minton supported overturning the precedent, but for different reasons, Robert H. Jackson, Felix Frankfurter, Tom C. Clark, and Stanley Forman Reed were reluctant to overturn Plessy.[112] Nonetheless, Warren won over Jackson, Frankfurter, and Clark, in part by allowing states and federal courts the flexibility to pursue desegregation of schools at different speeds. Warren extensively courted the last holdout, Reed, who finally agreed to join a unanimous verdict because he feared that a dissent would encourage resistance to the Court's holding. After the Supreme Court formally voted to hold that the segregation of public schools was unconstitutional, Warren drafted an eight-page outline from which his law clerks drafted an opinion, and the Court handed down its decision in May 1954.[113] In the Deep South at the time, people could view signs claiming "Impeach Earl Warren."[114]"

Why was today's decision unanimous?  Why didn't Sotomayor, Kagan, and Jackson dissent instead of concurring?  The obvious answer is that they agreed with the basic decision that Colorado didn't have the power to keep Trump off the ballot.  And that may well be true.  

But my hope is, as I said at the beginning, that Roberts got the Court to vote unanimously on this one in exchange for a unanimous decision on the immunity case.  Because Roberts sees two cases are so potentially explosive (though that didn't bother him with Dobbs), he wanted them to both be unanimous - one for Trump, one against him - to make the Court look less partisan at this time when the Court is under so much pressure because of precedent breaking cases like Dobbs and because of the corruption scandals surround Justice Thomas and others.  

But I also have some reservations.  

• I'm not sure Roberts could get such a commitment from the more conservative judges
• Even if he could, I'm not sure they will honor any such commitment, just as Mike Johnson didn't honor the commitment to pass the Ukrainian assistance if there was a border bill.

However, to grant a past president, even a sitting president, immunity is ludicrous.  "No man is above the law" is the "Treat your neighbor as you would have him treat you" of the US legal system.  It doesn't always happen, but it's the standard.   

Even if Roberts can't get a unanimous decision, he should minimally be able to pull Kavanaugh into such a decision along with the liberal justices and himself.  

I think the arguments for keeping Trump off the ballot in Colorado were compelling.  But Colorado has been voting Democratic presidential candidates since 2008.  So keeping him on the ballot is probably not going to change the election.  But the implications of the majority decision do seem to have long term effects.  But let's just hope we don't have any other presidential candidates who have plotted insurrection of the United States.

That's my thinking.  It's not a prediction, because in these perilous times, predictions are like throwing paper into the wind.  Treat this as wishful speculation.  

You can read the 20 page decision yourself below.  

Read Supreme Court decision... by kballuck1

[March 5, 2024 UPDATE:  This podcast by three attorneys - Leah Litman, Kate Shaw, and Melissa Murray - takes a pretty dim view of the decision and probably makes my hypothesis seem like desperate wishful thinking.  It's worth listening to.  Just click on the link.]