Justice Amy Coney Barrett packed two very different messages into her one-page opinion on Monday as the Supreme Court declared states could not toss former President Donald Trump off the ballot.
She chastised her colleagues on the right for breaking significant – and in her mind unnecessary – ground in the breadth of their legal reasoning.
But then she admonished the court’s three liberal justices, who also split from the majority’s legal rationale, in unusually biting terms.
“In my judgment, this is not the time to amplify disagreement with stridency,” Barrett wrote. “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.”
The 52-year-old appointee of Trump emphasized that the justices were more in sync than not, suggesting that the liberals’ writing subverted that fact.
“All nine Justices agree on the outcome of this case,” Barrett wrote. “That is the message Americans should take home.”
Yet Barrett’s statement, joined by no other justice, had the effect of highlighting the tensions between ideological factions and the power of the conservative majority, rather than neutralizing them. Liberal justices, often in the dissent, regularly adopt a caustic tone. It was paradoxical that Barrett herself, in rebuking them on Monday, chose words with more bite than usual.
The ideological strains inside the court will likely grow as the justices hear another chapter of Trump election-related litigation in April and begin issuing decisions this spring on various challenges to Biden administration policy.
Not since the 2000 case of Bush v. Gore, when the justices by a 5-4 vote cut off decisive recounts in Florida and gave then-Texas Gov. George W. Bush the White House over then-Vice President Al Gore, has the Supreme Court been positioned to play an outsized role in a presidential election.
Trump’s choice of Barrett as his third high court appointment dates to just before the November 2020 election and the sudden death of Justice Ruth Bader Ginsburg that September. Confirmed by the Senate before Election Day, Barrett immediately became the most consequential new justice.
Her sheer presence created a conservative six-justice supermajority on the nine-member bench. And her vote began defining the court’s new direction, especially when the justices in 2022 reversed the landmark Roe v. Wade decision and obliterated constitutional abortion rights nationwide.
But in the recesses of Barrett’s jurisprudence, she has sometimes set herself apart from the conservative wing and become slightly unpredictable. Liberal justices, likely hoping she might inch left over time, have pitched their arguments toward her, just as they sometimes do with two conservatives who’ve straddled the middle: Chief Justice John Roberts and Justice Brett Kavanaugh.
On Monday, Barrett aligned with the liberal justices to a point on legal reasoning – but also demonstrated her differences.
How the justices agreed and then splintered
As the high court rejected a Colorado Supreme Court decision that would have allowed the state to bar Trump from presidential ballots, it said states lack the power to enforce the key provision at issue.
The 14th Amendment’s Section 3 dictates: “No person shall … hold any office … under the United States … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion … .”
Relying on that provision, the Colorado Supreme Court in December disqualified Trump from the state presidential primary ballots.
“President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power,” the Colorado court said, referring to the January 6, 2021, attack on the US Capitol and Trump’s protest of the 2020 vote that favored Joe Biden for president. (The effect of the Colorado ruling was postponed as Trump appealed to the justices, and his name was never removed from ballots.)
During the justices’ oral arguments on February 8, it was clear a majority, if not all nine justices, were prepared to reverse the Colorado decision. They plainly believed no state, acting on its own, should be able to remove a candidate for national office.
And on Monday, the court in an unsigned opinion declared: “We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency…”
Even the three liberals who separated themselves from the majority’s reasoning agreed that the Constitution forbids individual states to set their own qualifications for a presidential candidate.
“Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles,” wrote Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in a joint concurring opinion. “That is enough to resolve this case. Yet the majority goes further.”
Invoking the wounds of past cases, that liberal trio opened with a Roberts line from 2022 in protest of how far the majority was going to reverse abortion rights: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts had written in the case that overturned Roe v. Wade.
“Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future,” the liberals wrote Monday.
They denounced the majority for its view that Section 3 could be enforced against only after Congress passed specific legislation, precluding, as the trio wrote, “other potential means of federal enforcement.”
“We cannot join an opinion that decides momentous and difficult issues unnecessarily,” the liberals said. “The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose.” They noted that the majority opinion foreclosed judicial enforcement of Section 3, such as through a prosecution for insurrection.
Joining Roberts in the majority were Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh.
For her part, Barrett agreed with the liberals that the five on the right wing need not have addressed “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
She said once the majority took that approach, the remaining four justices were left “with a choice of how to respond.”
Barrett made plain that with their “stridency,” the three liberals had chosen the wrong path.
Echoes of John Roberts’ complaint about the liberals
In criticizing the court’s critics, Barrett appeared to take a page from Roberts. The chief justices often implores the public to ignore the differences between the nine. He loathes instances when liberal dissenters make especially cutting remarks.
“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote of dissenting justices last year after he captured a six-justice conservative majority to reject the Biden administration’s student-debt relief plan.
Roberts, ever mindful of public regard for the court, added, “We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and the country.”
In Monday’s case, Justices Sotomayor, Kagan and Jackson refused to temper their disagreement, although their writing was listed as a concurring opinion rather than a dissent.
At one point, they even invoked a dissenting opinion from the enduringly controversial Bush v. Gore: “What it does today, the Court should have left undone.”
Today’s liberals then added of today’s majority, “In a sensitive case crying out for judicial restraint, it abandons that course.”
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