Appearing on Fox News to continue the publicity blitz for her “studiously bland” memoir, Supreme Court justice Amy Coney Barrett began laying the groundwork for her upcoming 2028 opinion requiring states to let Donald Trump run for a third term notwithstanding the whole “Constitution” thing. Brett Baier, the Andy Cohen of this Real Justices of Washington D.C. production, asked Barrett specifically about the Twenty-Second Amendment’s bar on Trump’s possible First Consul for Life bid.
Well, you know, the answer we were looking for was “yes.”
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This isn’t like the First Amendment, where a legal scholar can debate the limitations and exceptions and tradeoffs inherent in the freedoms it protects (including the one Barrett can’t remember). The Twenty-Second Amendment is astoundingly explicit. Presidents can’t serve more than two terms.
But the official Trump store is selling “Trump 2028” hats so the writing is on the wall — or hat, as the case may be — as to the president’s intention.
Republicans have already started floating new amendments to get around this. First, they suggested lifting the term limit altogether before realizing that this would result in Barack Obama symbolically pulling Trump’s diaper off in while the country pointed and laughed. Then conservatives got really high and pitched an alternative that allows presidents to run again as long as they got pummeled in an intervening election and got Grover Clevelanded.
But with no urgent action on these proposed amendments, it seems as though the Trump camp is warming to the simpler solution of just letting the Supreme Court erase the Twenty-Second Amendment the way it erased the Fourteenth Amendment’s bar on insurrectionists.
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For those who don’t remember, the Supreme Court decided unanimously that Colorado had to keep Trump on the 2024 ballot despite Section 3 of that amendment. The majority went further, functionally taking Section 3 off the table as an enforceable provision in perpetuity. In that case, Barrett relished her “reluctant executioner” schtick in a concurrence mildly chiding the majority for going too far. But Barrett saw a bigger problem at play. “The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond,” Barrett wrote then. “In my judgment, this is not the time to amplify disagreement with stridency.” In other words, erasing part of the Constitution isn’t nearly as objectionable as dissent.
It’s a blueprint for Barrett’s future take on presidential term limits. Sure, she knows what the Constitution requires, but when forced to call it cut and dried? Grab your Calvinball gear.
“Well, everyone knows the Constitution bars a third presidential term,” she’ll pen in concurrence. “What this opinion presupposes is… maybe it doesn’t?” Then she’ll go on a lengthy, performatively academic jag about how the amendment might say two terms, but Article II supersedes this because something something. However she squares it, she’ll conclude by reminding us that what’s important — in the end — is that Justice Jackson not be too strident about it!
Look, the Barrett apologists out there will suggest that this is Barrett Derangement Syndrome. “She didn’t say it wasn’t cut and dried!” they’ll protest. Yeah, I call shenanigans. There’s no room for equivocation here. She can’t hide behind some kind of “I don’t want to comment on a case I might hear” bullshit. This is about as black letter as it gets. Even Sir Samuel of the Upside-Down Flag knows better than to say publicly that he would vote to make Trump a God King. The unwillingness to say, loud and clear, that “yes, this is not an open question” is the whole issue.
That said, she’s got books to sell. Got to respect the hustle from the woman who complains about justices being too recognizable while hawking a memoir for a reported $2 million advance.
But, you know, thoughts and prayers for Amy when she has her vacation ruined by a brother-in-law asking her to explain “why fascism, exactly?”
Earlier: Amy Coney Barrett’s Fetish For Phony Reluctance
Supreme Court Just ‘Calvinball Jurisprudence With A Twist,’ Writes Justice Jackson
Amy Coney Barrett Forced To Discuss Destroying Constitutional Precedent During Family Trip
SCOTUS Keeps Trump On The CO Ballot Because … Eh, Whatever, It’s All Vibes
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.