- Barrett and three liberal justices agreed with the overall opinion
- But the Trump-appointee issued unusual call to ‘turn the temperature down’
- Three liberals called out the court for failing to exercise restraint
Justice Amy Coney Barrett issued an unusual concurring opinion with the Supreme Court‘s 9-0 decision that keeps Donald Trump on the Colorado ballot – issuing a plea to ‘turn the national temperature down’ during a fierce election season.
Like a trio of liberal justices on the court, Barrett, a Trump appointee, decided the majority had gone too far in its 20-page ruling that ‘states may not unilaterally disqualify Donald Trump from the ballot’ and voted to reverse a Colorado court’s decision striking Trump.
She joined in the overall decision, but warned against ‘stridency’ in divisions on the court – during an election season where the high court is making weighty decisions on presidential immunity while lower courts make scheduling decisions that will determine whether Trump faces jury verdicts before the November elections.
‘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,’ Barrett wrote in her one-page opinion.
It is ‘not the time to amplify disagreement,’ wrote Justice Amy Coney Barrett in her concurring opinion as the Supreme Court ruled 9-0 to keep Donald Trump on the ballot
‘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. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home,’ she wrote.
Barrett, who was confirmed by the Senate just eight days before the 2020 election in the culmination of a process that infuriated Democrats, wrote that she agreed states lack the power to enforce Section 3 of the 14th amendment, which includes language barring people who took part in insurrection from holding any ‘office’ in the U.S.
‘That principle is sufficient to resolve this case, and I would decide no more than that.’ But she writes that the majority went too far by setting out conditions where only the Congress decides through legislation.
‘The suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced,’ she wrote.
In a 20-page ruling, the court held that only Congress can decide if Trump is, or is not, eligible to run.
‘Responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States,’ the majority wrote.
‘States may not unilaterally disqualify Donald Trump from the ballot’, the justices added as they reversed a Colorado Supreme Court decision. ‘The judgment of the Colorado Supreme Court is reversed.
‘The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5’, the majority held.
Although she issued her own separate opinion, Barrett’s opinion aligned with the court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
‘Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision,’ the liberal justices wrote.
The liberals called out the court for failing to exercise restraint.
‘Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future. In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oath breaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment,’ they wrote.
‘Allowing Colorado to do so would, we agree, creates a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.
They complain that the decision ‘forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.’
Harvard legal scholar Lawrence Tribe, who backed the 14th amendment, tore into Barrett’s reasoning in an online post.
‘Justice Barrett told us what “message Americans should take home” from today’s ruling that, even if Trump’s role in the insurrection we just barely survived disqualifies him under the Constitution from ever holding office again, only congressional legislation under Sec 5 of the 14th Amendment can implement that absolutely vital ban,’ he wrote.
‘The message Barrett tells us to “take home” from that fiat is that we should just chill because all 9 justices agreed that Colorado overstepped what any one state should’ve been able to do.’