U.S. Supreme Court

Did 'grand bargain' fail to materialize in Trump ballot case? Metadata leads to speculation

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The U.S. Supreme Court left “a big clue dangling in the metadata” about potential negotiations when it issued a unanimous decision Monday that kept former President Donald Trump on the ballot in Colorado. (Image from Shutterstock)

The U.S. Supreme Court left "a big clue dangling in the metadata" about potential negotiations when it issued a unanimous decision Monday that kept former President Donald Trump on the ballot in Colorado, according to an article in Slate.

Although all the justices agreed that Trump should remain on the ballot, four justices said the majority should not have gone further by ruling that Congress had the exclusive power to enforce the constitutional ban on insurrectionists holding office.

The four justices expressed their views in two separate concurrences. One was jointly written by Justice Sonia Sotomayor, Justice Elena Kagan and Justice Ketanji Brown Jackson—the high court’s liberal justices—and the other was written by conservative Justice Amy Coney Barrett. The liberal concurrence was angrier in tone than Barrett’s, who emphasized unanimous agreement on the ballot issue and stated that “this is not the time to amplify disagreement with stridency.”

But the metadata shows that Sotomayor was initially a partial dissenter, according to Slate, Above the Law and Law360.

One way to see the metadata, on some computers, is by copying and pasting the top of the liberal justices’ concurrence that says “Sotomayor, Kagan and Jackson J.J., concurring in judgment” into a Microsoft Word document. The pasted version reads “Sotomayor, J., concurring in part and dissenting in part.” The same metadata shows when you search for the word “dissent.”

“What happened?” Slate asks. “Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. … The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?”

Paul Schiff Berman, a professor at the George Washington University Law School, thinks that Sotomayor’s opinion may have become a concurrence in an attempt to emphasize unanimity.

“I think they really wanted to try to make this a unanimous opinion in order to say this is not about ideology and it’s not about politics,” he told Law360.

Slate offers further speculation. One explanation is that Kagan and Jackson “were keeping their votes fluid” in the hopes of joining with Barrett to seek a fifth vote for a narrow holding that did not address whether Congress had exclusive authority to enforce Section 3 of the 14th Amendment. When Kagan and Jackson failed in that quest, they teamed up with Sotomayor.

“Broaden the scope of the potential negotiations, though, and things get more interesting,” Slate says. “After oral arguments, many smart court watchers mused that the justices might reach a grand bargain that tied this case to a separate dispute involving Trump’s claim of immunity from criminal prosecution for election subversion. The liberal justices might agree to keep Trump on the ballot if the court also refused to take up the immunity case.”

If the Supreme Court had refused to hear the immunity case, the federal appeals court decision holding that Trump did not have immunity from prosecution would remain in place. And that would mean that his criminal trial in the federal election-interference case might take place before the presidential election.

“That, of course, didn’t happen,” Slate says. “The court sided with Trump on the ballot issue and took up his immunity case last week on a less-than-speedy timeline, helping him run out the clock to November.”

Slate raises other possibilities, including that Barrett agreed to hear the immunity case “on a marginally expedited basis” this term, rather than push the case onto the docket for next term.

Or maybe evidence of a bargain will turn up when the Supreme Court issues its opinion in the Trump immunity case, according to Above the Law.

“Perhaps buried in the metadata,” Above the Law says.

See also:

“SCOTUS agrees to hear Trump’s presidential immunity claim”

“What happens next after Supreme Court agrees to hear Trump immunity case”

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