“Weird thing to write”: Experts call out Amy Coney Barrett’s “passive-aggressive” shot at liberals

Supreme Court Justice Amy Coney Barrett split from the conservative majority’s reasoning in the Trump ballot case but went after the court’s three liberals in “unusually biting terms,” according to CNN Supreme Court analyst Joan Biskupic.

The court’s majority ruled that states cannot disqualify a presidential candidate under Section 3 of the 14th Amendment — also known as the “insurrection” clause — and only Congress could enforce the provision.

Barrett pushed back on her conservative colleagues for “breaking significant – and in her mind unnecessary – ground in the breadth of their legal reasoning,” Biskupic explained. “But then she admonished the court’s three liberal justices, who also split from the majority’s legal rationale, in unusually biting terms.”

Barrett wrote that “this is not the time to amplify disagreement with stridency.”

“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,” she added.

Barrett’s concurrence appeared to suggest that the liberal justices highlighted disagreement over the ruling’s rationale.

“All nine Justices agree on the outcome of this case,” Barrett wrote. “That is the message Americans should take home.”

But Barrett’s opinion, which was 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,” Biskupic explained.

While the liberal justices agreed that states could not disqualify the president because it would “create a chaotic state-by-state patchwork,” they argued that the “majority goes further” by requiring Congress to enact legislation to enforce the Constitutional provision.

“We cannot join an opinion that decides momentous and difficult issues unnecessarily,” the liberals’ opinion 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.”

Barrett agreed that the majority did not need to address “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”

Biskupic noted that by criticizing the court’s critics, Barrett “appeared to take a page” from Chief Justice John Roberts.

“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 last year, warning that “misperception” of the court’s splits “would be harmful to this institution and the country.”

Longtime Harvard legal scholar Laurence Tribe criticized Barrett for her “message” that “we should just chill.”

“I’d stress what Justices Sotomayor, Kagan, and Jackson rightly reminded Justice Barrett and Chief Justice Roberts about: as Roberts rightly wrote in Dobbs, the Court should avoid deciding any more than it needs to decide when ruling on a case,” Tribe tweeted. “To reach out and resolve in advance all sorts of issues that might arise in the future is to take on the role of a super-legislature, not a court of law.”

Slate legal analyst Dahlia Lithwick called out the “weird, passive-aggressive vibe” of Monday’s opinion.

“Everybody is kind of pissed off but telling us over and over again: ‘We’re not fighting! We love each other! The court is working!’ This sense of performing unity and performing minimalism falls really heavily on the four women of the court in their separate concurrences,” she said Monday.

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MSNBC legal analyst Jordan Rubin called Barrett’s admonition of the court’s liberal minority “a weird thing to write.”

“For one, judges disagree all the time, and the Democratic appointees’ concurrence in Trump v. Anderson is hardly the strongest prose to hit the high court,” Rubin wrote, noting that the late Justice Antonin Scalia, for whom Barrett clerked, “wrote historically nasty opinions.”

“And if anything, calling attention to the manner of disagreement between disagreeing opinions — which is apparent from reading them — serves to needlessly ‘amplify’ any disharmony on the court,” Rubin continued. “Plus, what’s her source for stating that it’s the court’s job to ‘turn the national temperature down’ anyway? She doesn’t cite one. If pointing out flaws in a majority ruling turns up the national temperature — whatever that even means — then that’s a problem with the majority, not the minority pointing out those flaws.”