The Volokh Conspiracy
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Conservatives Should Not Be Surprised By Justice Barrett's Cautious Approach
Barrett was added to the SCOTUS short-list only seventeen days after she was confirmed to the Seventh Circuit.
When Justices Gorsuch and Kavanaugh were added to the Supreme Court shortlist, their judicial records were on full display. Justice Barrett was just the opposite. She had zero judicial record when she was added to the third iteration of President Trump's list. None at all. Indeed, she had been confirmed to the Seventh Circuit only seventeen days before the list was released! Moreover, when Judge Barrett was nominated to the Supreme Court, she had only a handful of high-profile cases. Her submissions to the Senate Judiciary Committee in 2017 and 2020 reveal her paper-thin record. Barrett lacked many of the indicia used to select other members on the list.
It is often said that the Federalist Society selected President Trump's nominees. If that were the case, they could have started with someone who was actually a longstanding member of the organization. But, Barrett was not a member of the Federalist Society while in law school, while clerking, or when she entered the academy. Even while living in the District of Columbia, she never attended the Federalist Society's national lawyers convention--a pilgrimage for conservative lawyers. She was a member in 2005-06, then let her membership lapse for nearly a decade. In 2017, Barrett was asked why she left the Society in 2006. She replied, "I do not recall why I left the Federalist Society in 2006." The dues for faculty are only $25 per year. She must have not found the organization useful--at least at that point in her career. By contrast, she held positions of leadership in the American Association of Law Schools. The Federalist Society hosted a faculty conference at the same time as the AALS convention, usually in a hotel across the street. I do not recall ever seeing Barrett at any of those meetings.
Barrett rejoined the Federalist Society towards the end of the Obama administration in 2014. That year, she had her first speaking engagement at a Federalist Society event. However, after Justice Scalia's passing in February 2016, the former Scalia clerk became a fixture of the Federalist Society speaking circuit, with six talks in the span of a year. That rate would accelerate after Barrett was confirmed to the Seventh Circuit in October 2017. I do not recall ever seeing Barrett at any Federalist Society event before 2017. And as best as I can remember, I met her for the first time in August 2017 at a law professor conference in Florida. She warmly said hello to me, but I was embarrassed that I didn't know who she was; it took me a few moments to recall that she was the professor from Notre Dame who had been nominated to the Seventh Circuit. That was all I knew about her.
Prior to her confirmation to the Seventh Circuit, Barrett had served as a law professor for about fifteen years. She taught constitutional law, civil procedure, federal courts, and other public law topics. During that time, she authored ten law review articles, a few book chapters, several blog posts on PrawfsBlawg, and zero books. These articles focused on statutory interpretation, federal court jurisdiction, and stare decisis.
To put Barrett's productivity in perspective, a group of professors measures the scholarly impact of law school faculties. And, within each faculty, the professors list the top-ten most cited authors. Professor Barrett did not make the top-ten of her own faculty in 2010, 2012, 2015, and 2018. I'll offer another point of comparison. Stephanos Bibas, a Trump nominee to the Third Circuit Court of Appeals, also served as a law professor between 2001 and 2017. During his academic tenure, Bibas published two books and more than fifty law review articles in roughly the same period of time. Bibas was also a member of the Federalist Society since he was in law school.
Beyond her few law review articles, Barrett had very little public advocacy. She authored or joined zero amicus briefs while a professor. She did not write any op-eds. In her fifteen years on the faculty, she listed only thirteen newspaper, radio, or television interviews. Again, for a point of comparison, Professor Bibas had more than thirteen pages of media hits. The closest Barrett came to taking a position on a controversial matter of public concern was a 2006 petition, which stated "It's time to put an end to the barbaric legacy of Roe v. Wade." But Barrett would later tell Senators that her position was moral, and not legal. Barrett said she signed the ad while leaving church, at a "table set up for people on their way out of Mass to sign a statement . . . validating their commitment to the position of the Catholic Church on life issues." Barrett's jurisprudential slate was not blank, but it was pretty clean.
By all accounts, Barrett was a devoted and beloved law professor. Her students and colleagues adore her. And in my brief interactions with Barrett, I can see why. But her public-facing record was quite unrevealing. The cleanest distillation of her judicial philosophy came in her not-entirely-positive review of Professor Randy's book, Our Republican Constitution. Reading between the lines, Barrett seemed to favor judicial restraint as a jurisprudence. Why then, was she added to the Supreme Court shortlist with virtually none of the indicia of the other candidates?
In 2020, when she was nominated to the Supreme Court, Barrett reported that she participated in roughly 900 cases over the span of three years. A few of those cases were high profile. In Kanter v. Barr, Judge Barrett wrote a dissent, finding that non-violent felons could not permanently be deprived of their Second Amendment rights. In Cook County v. Wolf, Barrett wrote another dissent that would have upheld the Trump administration's "public charge" rule for immigrants who accept public assistance. And in Grussgott v. Milwaukee Jewish Day School, Barrett wrote a majority opinion finding that the ministerial exception barred a Hebrew teacher from suing her religious school.
But one case Barrett did not list was St. Joan Antida High School Inc. v. Milwaukee Public School District. In this case, a Catholic high school contended that the government's bussing policy treated religious schools unequally. Judge Barrett joined the majority opinion, which found that the government may have had a "rational basis" to impose additional requirements on the Catholic school. The panel did not rule outright for the District. Rather, the court remanded the case to the lower court to determine more facts. Judge Diane Sykes, who was on the original Trump shortlist, dissented. She wrote that "this discriminatory treatment cannot be justified," even on the current record.
Barrett's vote in St. Joan presaged her position in two pandemic-era cases involving the Harvest Rock Church and South Bay United Pentecostal Church. At the time, California prohibited singing in houses of worship. Justices Thomas, Alito, and Gorsuch were able to conclude that the record favored a ruling for the church. Justice Barrett, as well as Justice Kavanaugh, suggested that the singing ban may be unconstitutional, but on the limited record, she would not enjoin the policy. Like in St. Joan, Justice Barrett favored hesitancy in the face of alleged religious discrimination. Ditto for Fulton. What Will Baude describes as "look before you leap" is Barrett's consistent level of caution--a caution that Justices Thomas and Alito lack. Again, progressives should be grateful that President Trump picked Barrett, and not someone else on the short list who would have voted closer to Thomas and Alito.
I'll admit there is something unsettling about Justice Barrett's glide path to the Supreme Court. She was added to the shortlist before she had taken any action as a judge. Indeed, she was added with a public record that said virtually nothing about her judicial philosophy. Once she was added to the list, Barrett was on something of a permanent audition. Every opinion she wrote, or did not write, would be parsed as a SCOTUS short-lister. Every speech she gave to the Federalist Society was like a dress rehearsal for her confirmation hearing. Judge Kavanaugh had to walk this tight-rope for the better part of a decade in cases like Seven-Sky. In my view, the best measure of a potential judge's philosophy must predate the moment he or she became an aspiring judge. For Barrett, the time to measure her mettle would have been during her time as a tenured law professor, when she had full autonomy to speak and write on matters of public concern. But she didn't. Ultimately, during Barrett's two-decade career between clerking and the judiciary, she did little to articulate what her judicial philosophy would be.
Perhaps Judge Barrett's limited academic and judicial record convinced the decisionmakers in the Trump White House that Barrett's judicial philosophy was akin to that of Justices Thomas and Alito. Maybe they disregarded St. Joan. But Barrett's cautious performance on the bench so far should not be surprising.
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No Supreme Court pick is perfect. Indeed, I am not even sure that any two people could agree on a single set of criteria to judge a Justice. I use the crude proxy of measuring the Trump appointees against Justices Thomas and Alito, the standard bearers of the conservative legal movement. Justice Gorsuch votes most consistently with Justices Thomas and Alito, but is absent on many emergency docket cases that touch on LGBT rights, consistent with his long-ago vote in Kastl. Justice Kavanaugh has proven himself by word and deed to be a disciple of the John Roberts school of judging. This viewpoint was on display in Seven-Sky, but he was selected nonetheless. Still, perhaps placing Kavanaugh in contention was essential to nudge Justice Kennedy to retire. But there were other Kennedy clerks that could have sufficed. Finally, Justice Barrett had something of a blank slate, and could only have been added to the short list based on personal opinions of her. Trust us, she's solid, the conversations likely went. In hindsight, her voting record has been better than that of Justice Kavanaugh, but her cautious streak has kept her distant from Justices Thomas and Alito in high-profile cases. To use baseball analogies, the conservative legal movement could have scored three home runs. However, we didn't even score a run. Justice Gorsuch was a standing double--a solid hit that probably could have been extended to a triple. Justice Kavanaugh was a sacrifice bunt--he advanced the movement, but still scored an out. Justice Barrett was a walk--she never swung but still made it to first.
It is easy enough for conservatives to claim victory, and say good enough! Though I am quite grateful for this new era of originalist jurisprudence, we should never rest on our laurels. Indeed, the failure to identify past errors in the selection process will guarantee that they recur. We should reorient future selections. Any future "short list" produced by a Republican candidate for President should start from scratch. The inquiry should focus on the actions taken before the candidate became an aspiring judge, and those actions should be consistent with the decisions they rendered while on the bench--both positive and negative. It is not sufficient to study a small sample size while the jurist was auditioning for higher office. Rather, a person's experience across his or her entire career must be the complete metric. The era of trust us and she's solid must come to an end.
