There are plenty of things to worry about when it comes to an oath-breaking insurrectionist’s presidential eligibility. Justice Amy Coney Barrett is seemingly concerned with how her Democratic-appointed colleagues disagreed with her fellow Republican-appointed colleagues on the subject.
Notably, Barrett agreed on Monday with Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson that the majority went too far in deciding unnecessary issues in Donald Trump‘s ballot case. But she wrote her own short, separate opinion that was evidently dedicated partly to chastising those three justices’ lengthier, more-critical concurrence. Barrett wrote in the second paragraph of her two-paragraph concurrence:
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. 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.
This was 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. The late Justice Antonin Scalia — for whom Barrett clerked — wrote historically nasty opinions. At any rate, that Barrett perceived it as strident is a personal problem that we didn’t need to hear about. 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.
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. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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