Justice Amy Coney Barrett now seems to have found her own place in this nine-body problem. She remains a reliable conservative vote on the court in major cases. At the same time, Barrett has also shown a sustained willingness to challenge her conservative colleagues over the last year or so, sharply disagreeing with them in some notable cases and voting in dissent with the three liberal justices in a few others.
The trend is now apparent enough that many conservatives are openly attacking Barrett for perceived disloyalty. Some MAGA activists denounced her in sexist terms by describing her as a “DEI hire.” One conservative lawyer described her as a “rattled law professor with her head up her ass.” Others criticized her for being insufficiently happy to greet President Donald Trump at his Tuesday address at the Capitol.
“With each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court,” Blackman wrote. “Indeed, she should have never been put on the ‘short list’ before she decided a single case. And I’m not sure why she leapfrogged over so many other qualified candidates in Indiana for the Seventh Circuit seat. Justice Brett Kavanaugh was described as the most qualified Supreme Court nominee in modern history. Justice Barrett, by that standard, would be the least qualified Supreme Court nominee in modern history.”
It would be a mistake to regard Barrett as anything other than a conservative justice. She cast the deciding vote to overturn Roe v. Wade in 2022. She has consistently voted with her conservative colleagues on cases involving religious freedom, capital punishment, and affirmative action. More often than not, Barrett has also joined the conservatives when curbing the power of federal regulatory agencies.
From there, she entered legal academia—first at George Washington University, then at the University of Virginia, and finally at Notre Dame. That path sets her apart from the other five conservatives on the court. She is the only one, for example, who did not work in the executive branch for a Republican president. Justice Clarence Thomas, Alito, and Roberts worked for the Reagan administration; Justice Neil Gorsuch and Kavanaugh worked for the second Bush administration. All but Kavanaugh worked in the Justice Department, a common launchpad for future judicial careers.
The opportunity cost was immense. Had Bush chosen a more rock-ribbed conservative jurist, Roe v. Wade would have fallen a generation earlier, in Planned Parenthood v. Casey in 1992. All of the other 5–4 decisions that moderates like Sandra Day O’Connor and Anthony Kennedy tipped leftward would have probably gone the other way. As a result, legal conservatives redoubled their efforts to ensure that only members of the “club,” so to speak, would be nominated by Republican presidents in the future. When the movement torpedoed Harriet Miers’s nomination to replace O’Connor in 2005, it cemented its control over the process.
How does this screening process work? Legal conservatives meet in the normal course of their work clerking for conservative judges or working for Republican presidents. Friendships and acquaintances naturally form. They then vouch for one another’s ideological bona fides when opportunities for advancement arise. Participating in this process is a credential of its own. Public signs of ideological commitment, especially from the bench, are also valued. Kavanaugh’s writings on the Consumer Financial Protection Bureau were a common touchstone in conservative op-eds and blogs about him during his nomination in 2018; so were Gorsuch’s opinions on the Chevron doctrine when he was nominated the year before.
In 2017, Trump nominated her to the Seventh Circuit Court of Appeals. This came as no surprise. By then, Barrett had built a respected academic career at Notre Dame, where she often wrote about originalism and was a member of a campus organization for anti-abortion faculty members. At the same time, Barrett was not on anyone’s shortlist for the Supreme Court before 2017. This is not because of anything she had done; it was simply because the conservative legal establishment generally prefers candidates with judicial experience.
Illinois Senator Dick Durbin, a fellow Catholic, intensely questioned Barrett over her use of the phrase “orthodox Catholic” in that article. Barrett said it was an inartful choice of words to describe a Catholic judge whose approach to the church’s teachings on capital punishment could lead to conscientious objection. But the most memorable moment came from California Senator Dianne Feinstein, who was concerned about how Barrett’s faith would affect her approach to cases on reproductive rights.
One National Review writer suggested that the questioning might amount to a “religious test” for judicial nominees, which the Constitution forbids. The Wall Street Journal’s editorial board compared the hearing to McCarthyism with the quip, “Are you now or have you ever been an ‘orthodox Catholic’?” and urged senators to confirm Barrett. “Let’s hope the Senate rejects the bigotry that marred Wednesday’s hearing and approves the eminently qualified Ms. Barrett for the Seventh Circuit,” the board wrote. “The federal bench could use more judges who understand their civic duty as well as Ms. Barrett does.”
Barrett did not disappoint her fans in her first few years on the high court. But even during this time, there were subtle signs that she might approach things differently than her conservative colleagues. The first inkling came when the court decided Fulton v. City of Philadelphia in 2021. Philadelphia officials had declined to renew a Catholic adoption agency’s contract with the city, citing its refusal to place children with same-sex couples. The agency sued the city alleging that it had violated the First Amendment’s free exercise clause by terminating the contract based on the agency’s religious beliefs.
The Smith ruling sharply limited the circumstances in which a free exercise clause claim could be brought in federal court. Many legal conservatives, including multiple current members of the court, argued that Scalia’s decision should be reversed in favor of a more expansive interpretation of the clause. Fulton looked like the perfect opportunity to do so: Philadelphia had justified its decision by invoking the city’s anti-discrimination ordinance.
At the same time, she rejected the originalist arguments for overturning Smith. Multiple conservative legal scholars and groups had filed friend-of-the-court briefs to offer their view of the historical evidence. Barrett was not persuaded. “While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances,” she wrote.
Faced with an intra-conservative split on overturning Smith, Roberts’s opinion for the court sided with the agency on more narrow grounds. Barrett’s concurring opinion proved to be decisive: The court has yet to revisit Smith since she cast doubt on finding a workable replacement. Her concurring opinion was also characteristic of her legal background. She sounded like a law professor who found a favorite student’s argument interesting and provocative but ultimately unpersuasive.
The other conservatives have not embraced her approach, to her apparent frustration. Barrett dissented from an Environmental Protection Agency–related case on ozone pollution last year on multiple grounds, including that the majority was “seizing on a barely briefed” theory to rule against the agency. She closed by emphasizing that the majority’s haste in striking down the EPA rule was an inappropriate way to handle the case.
Other partings of the ways are grounded in ideological differences. In some cases, Barrett has directly taken her conservative colleagues to task for how they approach conservative legal doctrines. In a First Amendment case involving political trademarks last term, for example, Justice Thomas concluded that the Trademark Office’s restrictions on living names did not violate the First Amendment, citing a long “history and tradition” of allowing them. Barrett sided with Thomas on the outcome, but wrote separately to criticize him for his flawed approach to originalism.
Barrett’s dissent in the Clean Water Act case last week also took Alito to task for what she saw as his flawed approach to textualism. She disagreed point by point with how Alito read the statutory text and concluded that his argument “reduces to the broader policy concern that it may be difficult for regulated entities to comply” with the EPA’s restrictions. As I noted earlier this week, that was a polite way of saying that Alito let his personal policy preferences supplant the law that Congress had written.
So why is the right so angry with her? Because they don’t want to lose. Barrett’s emphasis on methodological rigor and her aversion to cutting procedural corners would have been lauded by a previous generation of conservative legal thinkers. As things currently stand, that scrupulousness is an impediment to their ideological goals. They expect the six-justice conservative majority to endorse most, if not all, of what they want to do to civil servants, to immigrants, to transgender Americans, to universities, to blue states, and so on.
The easy nutshell metaphor here would be to compare Barrett to a law professor grading her colleagues’ work. I don’t think that is accurate because I don’t get the sense that she thinks she is describing the one, true way to interpret the law and the Constitution to her colleagues in these writings. Instead I get the impression that, after seeing firsthand how the court works, she is slightly aghast at how slipshod it turned out to be.
Ironically, Barrett almost certainly sits on the Supreme Court because of that defining MAGA impulse to humiliate their political opponents. In trying to own the libs by elevating her, however, they deviated from their usual practices and are now paying the price for it. It would be a mistake to describe Barrett as a swing vote, since that usually denotes some sort of ideological moderation. But her willingness to take her fellow conservatives to task for their sloppiness and their shortcuts may be just as influential over the next four years.
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