![]() ![]() ![]() It’s frankly difficult to see Sotomayor, an independent-minded and principled jurist, buying into this stratagem if she got nothing out of it. 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). (The description of presidential elections as “a great and glorious thing,” for example, sounds like the work of Kagan or Jackson, not Sotomayor.) ![]() 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. All the while, Sotomayor worked on the fallback option: a partial dissent chastising the majority’s overreach. 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. 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. At some point, that dissent turned into the opinion “concurring in the judgment” that we saw on Monday. Sotomayor then moved forward with a dissent faulting the majority’s overreach. Perhaps, after arguments, the court convened to vote on the case, and a majority settled on a sweeping rationale in Trump’s favor. In addition, during oral arguments last month, Sotomayor sounded the most skeptical of Trump and his various legal theories. 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. Now the speculation: We can guess that the bulk of this opinion was authored by Sotomayor herself. 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? 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 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. What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present. In the metadata of the link to 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. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. But the metadata tells a different story. The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents.
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