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THE HIDDEN DISSENT IN THE SCOTUS METADATA  
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Mark Joseph Stern
March 4, 2024
Slate
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_ We can guess that the bulk of this hidden dissenting opinion, which
in the final version appears only a a concurrence, was authored by
Justice Sonia Sotomayor. _

"Sonia Sotomayor Poster by Favianna Rodriguez" by stevegarfield (CC
BY 2.0),

 

The Supreme Court’s decision on Monday to keep Donald Trump
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Colorado’s ballot was styled as a unanimous one without any
dissents. But the metadata tells a different story. On the page, a
separate opinion by the liberal justices is styled as a concurrence in
the judgment, authored jointly by the trio. In the metadata of the
link
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the opinion posted by the court, however, this opinion is styled as an
opinion concurring in part _and dissenting in part_, authored not by
all three justices but by Sonia Sotomayor alone. Even a techphobic
reader can discern this incongruity through careful copying and
pasting [[link removed]],
piercing the facade of unanimity that the conservative justices sought
to present.

What happened? Most obviously, the Supreme Court rushed out this
opinion and forgot to check the metadata. The court, after all,
scheduled the opinion’s release only one day earlier, on Sunday
afternoon, evidently to hand it down before Tuesday’s Colorado
primary. Moreover, the justices did not take the bench to announce the
opinion, as they usually do—probably because they had not all
planned to be in D.C.—further proving that it was a last-minute
release. 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?

We cannot know with any real certainty. We may never. But we can
certainly speculate!

First, a recap
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The Supreme Court ruled that an individual state may not disqualify a
presidential candidate from the ballot under Section 3 of the
14th Amendment, which bars insurrectionists from regaining public
office. All nine justices agreed with this bottom line. Five justices
went further, however, declaring that only Congress may enforce
Section 3 against federal candidates. In a brief opinion, Justice Amy
Coney Barrett said the court should not have reached this broader
question about congressional authority. Sotomayor made the same point
in a longer, more acerbic opinion joined by Justices Elena Kagan and
Ketanji Brown Jackson. Her opinion was styled as a concurrence, but we
now know that it was actually, probably until late in the drafting
process, labeled a dissent. We also know that the opinion was
originally ascribed only to Sotomayor.

Now the speculation: We can guess that the bulk of this opinion was
authored by Sotomayor herself. It bears some of the justice’s
trademarks, including a realpolitik assessment of the majority’s
handiwork and stormy rhetoric about its consequences for democracy. In
addition, during oral arguments last month, Sotomayor sounded the most
skeptical of Trump and his various legal theories. Perhaps, after
arguments, the court convened to vote on the case, and a majority
settled on a sweeping rationale in Trump’s favor. Sotomayor then
moved forward with a dissent faulting the majority’s overreach. At
some point, that dissent turned into the opinion “concurring in the
judgment” that we saw on Monday.

Which leads to a second question: Why did a stand-alone Sotomayor
dissent transform into a three-justice concurrence? Here, the most
rational intuition is that Kagan and Jackson were keeping their votes
fluid in the hopes of striking a bargain to avert a gratuitously broad
opinion effectively repealing the insurrection clause. This bargain
may have been simple; the two justices might have joined with Barrett
to seek a fifth vote for a narrow holding, presumably from Roberts.
All the while, Sotomayor worked on the fallback option: a partial
dissent chastising the majority’s overreach. When Kagan and Jackson
realized they couldn’t nab a fifth vote for the narrow position,
they teamed up with Sotomayor, making a few changes and signing their
names as authors in a show of force and agreement within the
progressive bloc. (The description of presidential elections as “a
great and glorious thing,” for example, sounds like the work of
Kagan or Jackson, not Sotomayor.)

Broaden the scope of the potential negotiations, though, and things
get more interesting. After oral arguments, many smart court watchers
mused
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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. There would be an exchange of votes: Trump stays on
the ballot but gets no immunity from prosecution. He could run in all
50 states but would also have to contend with a criminal trial that
would likely conclude before the election.

Related From Slate
MARK JOSEPH STERN
The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually
a 5–4 Disaster

That, of course, didn’t happen: The court sided with Trump on the
ballot issue _and _took up his immunity case last week on
a less-than-speedy timeline
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helping him run out the clock to November. But maybe Kagan and Jackson
were working behind the scenes to strike this grand bargain. Maybe
they were withholding their votes in both cases, scrambling to find
two conservative justices who would rule narrowly for Trump in one
case and swiftly against him in the other. If so, that didn’t
happen. But it would still make sense for Kagan and Jackson to
withhold their votes in both cases until they got confirmation that no
compromise lay on the horizon in either dispute.

Then there is the least interesting possibility: that Sotomayor’s
opinion was going to be a partial dissent until Roberts and Barrett
prevailed upon her to call it a concurrence—in a bid
to _look_ unanimous and “turn the national temperature down” (in
Barrett’s words). It’s frankly difficult to see Sotomayor, an
independent-minded and principled jurist, buying into this stratagem
if she got nothing out of it. And this theory doesn’t explain why
the other two liberals signed on as authors apparently so late in the
game.

But there is always another bargain to seek, another compromise to
pursue. Who knows what these three justices might have received in
exchange for removing the word _dissent_ from this opinion. Maybe
they needed to call the opinion a concurrence to wrench a separate
opinion out of Barrett, one she might not have offered otherwise,
criticizing the majority. Barrett strived to frame the outcome as a
reflection of friendly unanimity; perhaps she threatened to paper over
her disagreement unless the liberals dropped the word _dissent_ to
keep up the facade of cross-ideological agreement. Or maybe Barrett
was on the fence about whether to grant Trump a _full_ _stay_ in
his immunity case and push the case onto next term’s docket, instead
of hearing it on a marginally expedited basis this term. If so,
perhaps the “concurrence” language was the price of her vote
there. Whatever the liberals were able, or not, to eke out of the
conservative justices, it appears to have been thin gruel indeed.

Such guesswork is ultimately somewhat of a fool’s errand, but it’s
irresistible when the Supreme Court leaves such a big clue dangling in
the metadata. (I asked the court for comment on Monday but have not
yet received a response.) Whatever happened behind the scenes, the
final product is plenty fractured
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its own terms. The liberal justices can call their opinion whatever
they want. At the end of the day, it reads exactly like what it is: a
furious and fearful dissent.

_Mark Joseph Stern is a Slate senior editor._

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* 14th amendment
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