Barrett Chides Supreme Court Colleagues in Trump Ballot Rebuke

Division about how far the US Supreme Court should go lay beneath the broad agreement among the justices in reinstating former President Donald Trump to the Colorado primary ballot.

The four female justices declined to join in full the court’s unsigned opinion on Monday holding that states don’t have the power to enforce the Constitution’s insurrection clause against federal office holders.

Justice Amy Coney Barrett, however, stood out. Writing separately, the Trump appointee concurred in only part of the ruling that overturned a state court decision and took issue with her colleagues on both sides of the ideological divide.

Barrett joined liberals Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in chiding the conservative-led majority for going too far and suggesting that Congress must pass legislation before Section 3 of the 14th Amendment—the insurrection clause—can be enforced.

Barrett also appeared to question the tone of the liberals. She lamented the rhetoric used in their opinion, which she said threatened to overshadow the 9-0 decision amid an election season.

This isn’t “the time to amplify disagreement with stridency,” she said.

“Barrett’s concurrence is remarkable,” both “for calling out the majority for overreaching” and “for its rebuke of the justices who concurred in the judgment,” said Brennan Center Vice President Wendy Weiser.

Door Closed

The liberal justices said the court’s decision “goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”

“In a sensitive case crying out for judicial restraint, it abandons that course,” they said. In doing so it “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

They noted in their opinion that “a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

Notre Dame election law professor Derek Muller agreed that the majority’s opinion “would close the door to some post-election challenges that might otherwise be left open by the decision.”

The decision to go further than it needed to go is especially damaging where, as here, “the Court was moving so quickly, and was unanimous as to a narrow ground on which the case could’ve been decided,” said University of Texas constitutional law professor Stephen Vladeck.

Finger Wagging

Barrett, too, agreed that the court shouldn’t have decided what she called “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”

But her one-page concurrence focused as much on the tone of the liberal justices’ opinion as it did on the holding in the per curiam ruling.

“Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” Barrett said.

She’s calling attention to “the need for judicial statesmanship in matters involving presidential elections,” Weiser said. In doing so, she continued,"Barrett accuses the other concurring justices of ‘amplifying disagreement with stridency.’”

Muller notes, for example, that the liberal’s decision cites “charged cases like Dobbs and Bush v. Gore to express its disagreement,” referring to the court’s 2022 ruling overturning the right to an abortion and its 2000 ruling on that year’s presidential election.

“Barrett’s concurrence might appear that it is scolding the authors of the main opinion,” said Albany Law School professor Ray Brescia. “In reality, her very ‘boys-will-be-boys’ tone suggests that what she believes is there shouldn’t have been a separate concurrence” filed by the three liberal justices.

Her “wagging judicial finger is directed at the justices who wrote separately and not the authors of the majority’s opinion,” Brescia said.

The case is Trump v. Anderson, U.S., No. 23-719, 3/4/24.