LogFAQs > #979179566

Okay, digging into this and it's a bit more interesting (to a nerd like me) than it appeared at first glance. I think what's happening here is that 5 of the Justices (Alito, Thomas, Roberts, Gorsuch, and Kavanaugh) took this opportunity to go a lot further than they needed to here to basically restrict how a disqualification under Section 3 could occur and much of the opinion that is delivered "per curiam" is in fact just the thoughts of those 5.

Here's what I can tell - the one and only thing that all 9 agree on is that "States do not have the power to enforce Section 3. Therefore Colorado was wrong and we must overturn." But immediately there emerges a split - on one side, the 5 above. On the other is Sotomayor, Kagan, and Jackson writing a joint opinion and Barrett who writes a single page.

The three liberals write (and cheekily cite Roberts in Dobbs to open) that that being the sole question before the court once they decided that States can't enforce Section 3 they were done here and no more need be or should be said. However, in their words, "five Justices go on." They accuse those five of going much further in their judgment and deciding entirely new questions in their reasoning "to insulate this Court and petitioner from future controversy" by just riffing on how they think Section 3 can (and must) be enforced and by whom (and only whom) thereby slamming the door on other possible avenues that Section 3 could be enforced federally.

They actually do raise my gripe about how everything else in the Reconstruction Amendments (and no brainers like the age or term limit) are self-executing and do not require additional legislation to enforce and that "Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3." and "By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding office."

It's a pretty scathing opinion for what will surely be reported (technically correctly) as a unanimous decision.

For Barrett's part, like I said, it's basically a single page and while she agrees with those 3 that they should have stopped at the same "States lack this power" reason - she tries to strike a "Americans should take away from all this that all nine of us agreed on this case." In what comes off to me as a clear "Don't look behind the curtain here where actually there is a pretty striking argument amongst us over what we just decided here! We all agreed! Unity!" to deflect from any examination of the arguments raised by the liberals and their accusations of the five Justice majority.

Or to frame this another way:

9-0 on "States don't have the power to enforce Section 3"
5-4 on "Only Congress can do it and only in a way we like and only if we feel like it (and only if it's not used against Republicans who actually fomented insurrection)" [Less exaggeration than you might think. It really comes off as those five just riffing with asides like "oh and subject to judicial review of course" and "tailored to..." when they're just thinking out loud on how Section 3 can be enforced in their minds.]

But that nuance is likely to be buried beneath the coverage of the 9-0 bit. But that's one of the more pointed "concur in judgment" opinions I've ever read. They were not pleased here and you can tell with how much they call the five Justices out and some of those quotes from above like saying they're just trying to protect themselves, Trump, and future insurrectionists.