The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Were There Last Minute Changes to Trump v. Anderson?
There are reasons to suspect the justices were wrangling over language up until the last minute.
All nine justices were able to agree on a bottom-line result in Trump v. Anderson: States cannot disqualify candidates for federal offices from the ballot under Section 3. But they were not in agreement on what the decision should say. I suspect that they were wrangling over the language of the per curiam and other opinions until the last minute as they rushed to issue an opinion in advance of Super Tuesday primary voting (or the Monday release the Court had already announced).
As Mark Joseph Stern noted yesterday on Xitter, the three-justice opinion concurring in the judgment appears to have been originally drafted as an opinion by Justice Sotomayor "concurring in part and dissenting in part." So either Justice Sotomayor was confused about how to style an opinion that reaches the same bottom line judgment of the majority (unlikely), or something changed in one or both opinions. [Sidenote: Who thinks to check metadata by double-clicking random parts of an opinion or searching for ghost text?]
There are other indications things may have been revised quite late. For instance, the three-justice opinion accuses the majority of holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." The majority certainly holds that Section 5 of the Fourteenth Amendment vests in Congress the power to enforce Section 3, but nowhere does it require a "particular kind of legislation." Might this be responding to language in a per curiam draft that was later watered down? It's quite possible the per curiam was changed leaving no time for additional revisions to other opinions.
There's also a line in Justice Barrett's separate opinion that seems to be jousting with something that is not there. After explaining why she did not join parts of the per curiam, Barrett writes:
The majority's choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.
"Stridency"? Really? Justice Barrett does not strike me as that sensitive. Perhaps the thre-justice opinion's citations to the Chief's separate Dobbs opinion and Breyer's Bush v. Gore dissent were a tad salty, but "strident"? This makes me wonder further whether there was language in the three-justice opinion that was watered down or removed, and the rush to issue the opinion prevented further revisions in response. (Or perhaps Justice Barrett initially drafted this language in response to a Justice Sotomayor partial dissent.
There are other places where the opinions do not quite mesh the way one would expect were there time for lots of back-and-forth, but these are a two I thought worth highlighting.
I had also initially wondered about the lack of a syllabus, but it turns out this is standard for per curiam slip opinions. They are initially issued without syllabi, which are later added for publication in the U.S. Reports.
Well, that's enough procrastination-through-speculation for one day.
