The Volokh Conspiracy
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USA Today: "Liberals owe Justice Barrett an apology"
What do conservatives owe Justice Barrett's supporters?
The USA Today published an essay titled "Liberals owe Justice Barrett an apology. She's clearly not in Trump's pocket." The subtitle is "Trump's most 'controversial' Supreme Court nominees – Barrett and Kavanaugh – are among the most independent of the conservative majority. Democrats would be better served by understanding that."
Here are some excerpts:
Barrett, who cast the surprise deciding vote against Trump, has been criticized by Democrats, yet she continues to rule independently of the conservative majority. In this case, her decision should dispel the myth that she is somehow beholden to Trump. . . .
As it turns out, she has proved to be one of the most willing of the court's conservatives to deviate from the supposed extreme MAGA court, particularly in matters related to Trump. . . .
Even beyond this, Barrett has repeatedly demonstrated she is not beholden to the man who appointed her to the court. She has frequently departed from the pack of the conservative majority to rule against Trump.
Democrats can criticize Barrett's form of jurisprudence all they want, but the attacks on her character during her nomination were way over the line.
Her decisions since then have proved a commitment to the law. . . .
Both of Trump's most "controversial" Supreme Court nominees ‒ Barrett and Kavanaugh ‒ are among the most independent of the conservative majority. Democrats would be better served by understanding that.
While Democrats are free to disagree with her jurisprudence, Justice Barrett is as favorable to the liberals on the court as Democrats could wish for. Democrats should regret how they treated her during her confirmation.
And it's not just Trump cases. Justice Barrett, and to a lesser extent Justice Kavanaugh, have ruled against Trump, and conservative positions more broadly, in contrast with Justices Thomas, Alito, and Gorsuch. I've made this point in more writings than I can recall.
In 2018, as the left was trying to destroy nominee Kavanaugh (now "Kavanaugh" is a verb akin to "Bork") I wondered if they really wanted someone else. Had Kavanaugh dropped out, Trump almost certainly would have nominated someone to Kavanaugh's right, who would have been confirmed far more easily.
With Justice Barrett's super-fast nomination, there was not nearly enough time to destroy her. Indeed, her scanty record probably made it harder to manufacture any sort of scandal. Yet the left savaged her as a Christian nationalist who would force all women to be handmaidens, or something like that. But again, I thought to myself, if it were not Barrett, it would be someone to Barrett's right. (It is true enough that a replacement could not have been confirmed before the election, but there was plenty of time between election day and January 3.)
With the benefit of hindsight, liberals absolutely owe an apology to Justice Barrett and Justice Kavanaugh. As I've said many times on the stump, liberals should be grateful Trump picked those two jurists. And if any members of Indian tribes ever spoke out against Justice Gorsuch, they too should apologize. And while we're on the topic, every Democrat who opposed John Roberts's nomination in 2005 should make a formal apology. Where's John Kerry?! George W. Bush's most enduring decision was almost an accident of history. Had Rehnquist held on a few more months, we very likely may have had a Chief Justice Alito.
Finally, if liberals owe Justice Barrett an apology, what do conservatives owe Justice Barrett's supporters? How do we respond to those boosters who assured conservatives that Justice Barrett was "solid"? Or those who told us she would become the next Justice Scalia? If President Trump was told that Justice Barrett would be a free-thinking independent who practiced restraint, would he still have picked her? Did any of Barrett's backers recognize that Ruth Marcus could call Barrett a "pleasant surprise"?
I, for one, am surprised by very little that the Trump appointees have done. And I hope those lessons are learned for all future vacancies at the Supreme Court, and on the courts of appeals.
