The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Learning to Like the "Loneliest Justice"
That some legal commentators are surprised by Justice Barrett may say more about Court commentary (and the way she was caricatured when nominated) than it does about Justice Barrett.
Since the Supreme Court term ended, there have been numerous articles on Justice Barrett, highlighting her independence and thoughtfulness, noting she is simultaneously quite conservative and yet cautious. See, for example, these articles from NBC News and the Washington Post.
In today's New York Times, in an op-ed titled "The Most Interesting Justice on the Supreme Court Is Also the Loneliest," law professor Stephen Vladeck writes about Justice Barrett's performance this past term. It begins:
When this Supreme Court term began last October, one of the more intriguing predictions from commentators was that Justice Amy Coney Barrett — entering her third full term on the court — would come out of her shell and emerge as the court's new swing justice, casting the decisive vote in the most divisive cases.
The commentators got half of that right: There's little doubt, in looking at the oral arguments the court has conducted and the decisions it has handed down over the past nine months, that Justice Barrett has found her literal and figurative voice — and has easily become the most interesting justice. Her questions at argument are penetrating; the analysis in her written opinions spare no one in their detail.
The second part of that prediction didn't come true, though. Justice Barrett did side with some or all of the three Democratic appointees in several of the term's most important cases — but her fellow conservatives seldom joined her. Indeed, while Justice Barrett was establishing her principled independence in the middle of the court, the other five Republican appointees moved only further to the right. . . .
The justice reflected in all of these cases is someone who comes across in her writings as principled, nuanced and fair-minded — regardless of the bottom line that her votes end up supporting. Many of us may not agree with the principles reflected in her writings (like her majority opinion in a case holding that U.S. citizens don't have a property interest in the immigration status of their noncitizen spouses). What cannot be doubted is that they are principles, and that, to an extent greater than many of her colleagues, Justice Barrett does her best to hew to them.
In some respects, the article echoes points made by Professor Noah Feldman, a liberal professor who endorsed Barrett's qualifications when she was nominated to the High Court. In another respect, the article suggests that Justice Barrett has been precisely the sort of justice that her advocates and defenders suggested she would be -- and that her critics who drew ugly caricatures were profoundly wrong. Put another way, if someone is surprised by Justice Barrett's performance on the Court, that may say more about them than it does about Amy Coney Barrett.
