Following up on my earlier discussion of today’s ruling, some are asking whether the decision about Congress’s power is really 6-3 and I wrote, or 5-4 given Justice Barrett’s concurrence.

Justice Barrett joined Parts I and II.B, but not II.A. She wrote: “I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that.”

That suggests she’s with the liberal Justices on the question of all the dicta about Congress. AND YET, Barrett joins Part II.B which includes this very important language:

Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3.

Seems to me she’s with the majority on this aspect of Congress’s power, despite what she wrote.

So we could read it either way.