The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court's "Scholar Justice"
John McGinnis on Justice Amy Coney Barrett
A substantial amount of Supreme Court commentary after this past term has focused on Justice Amy Coney Barrett. See examples here, here, and here. Much of the commentary highlights cases in which she wrote separately or broke with other conservative justices. One commentator even referred to her as the "loneliest justice." Relatively little of the commentary has dug very deep into her emerging jurisprudence.
Over at Law & Liberty, Professor John McGinnis offers an insightful analysis of Justice Barrett's early jurisprudence. While he does not agree with everything she has written, he offers a sympathetic take. Her differences with other justices are not a consequence of her moderating or succumbing to the "Greenhouse effect," but rather reflect a sincere effort to get things right.
Liberal hopes and conservative fears about Barrett, however, are misplaced. It is true that she is becoming increasingly confident as she enters her fourth year on the Court. But her decisions are not dictated by ideology but rather by intellect. She is the only former law professor among the originalist-oriented judges and spent much of her time as an academic working on interpretive theory—originalism in constitutional law and textualism in constitutional law. She sees it as part of her judicial duty to make the decisions following these theories as principled and rigorous as possible. In trying to work the law pure, she will naturally depart from some of the rationales and results of her colleagues. Justice Barrett deserves praise for charting her own course.
After surveying and assessing Justice Barrett's approach to originalism, textualism, and the "passive virtues" of judging, he concludes:
This approach should remind us that any legal movement like originalism cannot be sustained only by judges but depends on a larger legal culture. Through both her theorizing and incrementalism, Barrett is helping to summon that culture into being. Commentators are correct that Barrett is forging her own path. But her actions do not signal an ideological shift but rather an effort to make the law more coherent and legitimate. She is embracing the role of the scholar-judge, a position that great justices like Joseph Story and Antonin Scalia also once occupied to the great benefit of legal stability and coherence.
