The Next Best Defense Of Justice Barrett: She May Disagree With Justice Thomas A Lot, But You Better Learn To Deal With It, Because She Will Be Here For A Long Time

On Monday, I wrote about Mike Fragoso's defense of President Trump's decision to appoint Justice Barrett. Fragoso has now published a second installment, which defends Justice Barrett's record on the Court. Fragoso, to his credit, acknowledges that Justice Barrett votes differently than Justice Thomas. He chalks Barrett's different voting patterns to what he calls the Justice's "apolitical proceduralism." Fragoso has written what I think are the best defenses of Barrett's appointment and her record on the bench. Ultimately, I think his essay backfires, and furthers my case.

First, we can start with the merits docket. Fragoso writes, "Most importantly, Barrett got rid of Roe v. Wade." True enough, but there is more than meets the eye. The New York Times reported that Barrett changed her vote to deny cert in Dobbs. That the case was granted was due to Justice Kavanaugh, and not Justice Barrett. Pulling back, every judicial conservative has understood for nearly half a century that Roe had to be overturned. Should we really be celebrating a decision like Dobbs that was so clearly right? And in Moyle, an important follow-up case to Dobbs, Justice Barrett was not with Justices Thomas, Alito, and Gorsuch.

Second, Fragoso praises Barrett's record on the Seventh Circuit. "Her time on the Seventh Circuit demonstrated a record of clarity and analytical rigor that followed precedent and—where appropriate—urged the court to better align its jurisprudence with the original understanding of the Constitution." Fragoso does not cite any cases here. But one case worth mentioning, that did not appear on Barrett's SJC questionnaire, was St. Joan Antida High School Inc. v. Milwaukee Public School District. I described the case back in 2023:

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.

Fragoso repeatedly describes Catholic support of Barrett, though this case did not get the attention it warranted.

Third, Fragoso defends Justice Barrett's refusal to overrule Smith in Fulton:

To begin, she is very clearly a textualist and an originalist. This has presented some problems for the right, such as when she refused to overturn Employment Division v. Smith because the proposed relief was fundamentally non-originalist.

In Fulton, Barrett wrote that she was not persuaded by Professor McConnell's originalist research:

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.

Rather, she was motivated by arguments based on "text and structure."

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Barrett's Fulton opinion was not originalist. I think Professor McConnell has made the case that Smith is wrong as an originalist matter. Justice Barrett apparently disagrees. But she did not offer anything close to an originalist account of the Free Exercise Clause. She simply listed some random questions that really didn't matter much. And in the wake of Fulton, she has shown no interest in the answers to those questions. And if Fragoso is right, should we believe that Justices Thomas, Alito, and Gorsuch favored a "fundamentally non-originalist." Of course not. This argument doesn't hold up.

Fourth, Fragoso celebrates Barrett's concurrence in Biden v. Nebraska:

But it has also yielded some great analysis, like when she responded definitively to Justice Kagan's endless trolling about the supposed non-textualism of the Major Questions Doctrine in a masterly concurrence in Biden v. Nebraska.

This defense backfires. Fragoso acknowledges that Barrett is acceding to Kagan's trolling. It's true. Justice Kagan has had a palpable influence on Barrett, and has convinced her on a number of topics. That is not something that should be praised. But what Fragoso omits is more important. In Nebraska, Barrett rejects Justice Gorsuch's conception of the major question doctrine from West Virginia v. EPA. The Gorsuch-version of the doctrine is premised as an avoidance doctrine with regard to the non-delegation doctrine. Gorsuch is right! But Barrett disagrees Gorsuch (and the other conservatives) in a concurrence that only academics could love about interpretive canons.

Fifth, Fragoso turns to the emergency docket:

In the wake of the promiscuous expansion of the universal injunction over the last decade, that's changed. Now cases don't have time to percolate. District judges decide matters quickly for the whole country, usually in a hand-picked circuit likely to agree with them, thus forcing the Supreme Court to step in quickly and resolve the question on an imperfect record.

Barrett clearly thinks this is no way to run a railroad, although she hasn't necessarily said it in so many words. One of the issues with the emergency docket is that orders aren't necessarily justified publicly, so the main evidence we have is her seeming reluctance to grant relief on an emergency posture.

Justice Barrett's biggest areas of disagreements with Justices Thomas and Alito come on the shadow docket. I documented more than a dozen cases where Barrett was opposite Alito and Thomas. Fragoso describes Barrett's votes as a "seeming reluctance." I think it far more useful to see how Justices Thomas and Alito describe their own colleagues. From my Civitas Outlook column:

Since 2022, these criticisms have continued. In another abortion case, Justice Alito wrote that Justices Kavanaugh and Barrett have "simply lost the will to decide the easy but emotional and highly politicized question." Alito added that his colleagues "do[] not want to tackle this case" and instead "duck[]."  Just last month, the Court declined to review a school's policy that encouraged students to transition their gender without parental consent. Justice Alito faulted Justices Gorsuch and Barrett for "succumbing to the temptation to . . . avoid[] some particularly contentious constitutional questions."

I think Justice Barrett has acceded to the relentless drumbeat about the nefarious shadow docket. Defenders can chalk her votes up to "caution" or "reluctance," but the fact remains that she consistently denies relief in cases that will never make their way to the merits docket. If she coupled her parsimonious denials on the shadow docket with more grants on the merits docket, perhaps Barrett's behavior can be justified. But she simply denies across the board. It is caution all the way down.

Sixth, Fragoso defends Barrett's vote in the USAID case:

TROs, of course, are generally not appealable, but the government needed some recourse because it claimed it couldn't, in fact, comply with the order—even as a technical matter. John Roberts provided relief in the form of an administrative stay, which he then lifted—thanks to Barrett's vote—after the preposterous deadline passed.

This isn't right. The deadline passed, but it remained in effect. The Court quietly ordered the district court to hold a hearing, even after denying relief. I still think this was an advisory opinion. And it doesn't help Fragoso's case to lump in Barrett with the Chief Justice's creative alternative dispute resolution. What does it say that Justices Thomas, Alito, Gorsuch, and Kavanaugh were on the other side? Were they not principled originalists or textualists or whatever other label you wish to use?

Seventh, Fragoso suggests that Justice Kavanaugh is the center of the Court, and not Justice Barrett:

More globally, some evidence suggests that it's actually Kavanaugh who holds the fulcrum post on the Court. But if you've spent the last couple weeks on X, you've heard that it's Barrett.

Fragoso cites a SCOTUSBlog article from May 2021, several months into Barrett's term. That is not particularly current evidence. I think Barrett started off more conservative as Kavanaugh started off more liberal. Over the past few years, they have reversed places. I made this point with regard to the shadow docket. And Adam Feldman brings the receipts on the merits docket:

In the 2020 and 2021 Terms, Barrett's voting pattern placed her firmly in the conservative bloc. The differences were notably large, particularly in 2021, when her agreement with Justices Alito (-33), Roberts (-32), and Kavanaugh (-32) showed a strong conservative lean. This suggests that in her early tenure, she was ideologically closer to her conservative colleagues than to Kagan by a significant margin.

However, in the 2022 Term, Barrett's alignment appeared to shift slightly. While she remained closer to conservatives overall, the differences between her agreement with Kagan and the conservative justices narrowed. Notably, her difference with Alito reached zero, indicating equal agreement with both him and Kagan. Similarly, her alignment with Gorsuch (-2) and Thomas (-4) showed a more moderate stance compared to the previous terms.

By the 2023 Term, Barrett's ideological position remained conservative but showed further moderation. The differences with Thomas and Alito (-12 each) and Gorsuch (-8) were smaller compared to earlier years. However, her gap with Kavanaugh (-21) remained more substantial, suggesting that while she continued to vote with conservatives, her alignment was not uniform across all cases.

These trends suggest that while Barrett consistently leans conservative, her level of agreement with her colleagues fluctuates over time, and in certain cases, she appears to take a more moderate stance.

I remain convinced that if Dobbs came to the Court in 2025, Justice Barrett would vote with the Chief. Her slide from earlier in her career is palpable. Don't forget, earlier in Justice O'Connor's career, she signaled she would reverse Roe. That is why Justice Scalia became so angry at her, and pushed her further away in Casey. That Barrett had so many important cases earlier in her career is significant, and I suspect she regrets some of those votes in hindsight.

Seventh, Fragoso acknowledges that Barrett has, on occasion, voted with the Court's three liberals in 5-4 cases:

To see how Barrett aligns with the liberal justices in close cases I tracked the number of times Barrett has voted on the same side as at least two of the liberal justices in 5-4 decisions since she joined the Court. It happened once so far this term in City and County of San Francisco v. EPA where Barrett dissented along with Justices Kagan, Sotomayor, and Jackson. In another environmental case, Ohio v. EPA from OT 2023, the justices' voting alignment was the same.

This happened in five other cases making six of the 30 total 5-4 decisions between OT 2020 and OT 2023 or 20% of the time. The other cases were Bittner v. US, National Pork Producers v. Ross, Ysleta Del Sur Pueblo v. Texas, Becerra v. Empire Health, and Goldman Sachs v. Arkansas Teachers' Retirement System making for one case in 2020, two in 2021, two in 2022, and one in 2023 showing no great increase over her time on the Court.

I do have to address one unusual statistic. Jed Rubenfeld at the Free Press wrote "In not a single 5–4 case from 2022–2024 did Barrett join the three liberal justices to help form a majority." That is a very gerrymandered statement. Rubenfeld excluded Barrett's cases in 2020, 2021, and 2025, three of her six years on the Court. In 2021, Justice Barrett wrote the dissent with the three liberals in HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association. In 2023, Barrett dissented with the three liberals in Ohio v. EPA. In 2025, Barrett dissented with the three liberals in San Francisco v. EPA. Plus there were death penalty cases and other shadow docket matters where this 5-4 lineup appeared.

Eighth, Fragoso tells conservatives to stop complaining, and instead find ways to persuade Justice Barrett:

The fact that there are six Republican appointees on the Supreme Court doesn't relieve conservative litigants of the need to convince five justices to agree with their position. . . . Well, assuming for the sake of argument that this is correct, then the conservative legal movement needs to figure out how to litigate cases to Barrett, and those in the judicial-selection business need to take the reality of her fifth vote—and her life tenure—into consideration when picking appellate judges.

Where have I heard this before? From my post on March 14:

In the bad old days, Erwin Chemerinsky used to joke that if he could put Justice Kennedy's photo on the front cover of a brief, he would. But as I observed two years ago, briefs are now being directed to Justice Barrett.

Indeed, I think the analogy between Justices Kennedy and Barrett goes further. Fragoso argues that no one else could have been nominated to fill Ginsburg's seat before the election. Barrett was a candidate of necessity. Sound familiar? After Judge Robert Bork was Bork'd, and Judge Doug Ginsburg's nomination went up in smoke, there was another crisis. We were told that only Judge Anthony Kennedy could be confirmed in that climate. Even Laurence Tribe endorsed Kennedy! And what did that candidate of necessity get us? Casey, Lawrence, Obergefell, and much more. We do not do well with candidates of necessity. Indeed, George W. Bush elevates Roberts to the Chief seat only because Rehnquist died suddenly. Had Rehnquist held on for a few months more, we might have a Chief Justice Alito. Decisions made under poor time constraints seldom work out well. That is why having the right short-list in advance is critical.

The Court has shifted from appealing to the quirks of Justice Kennedy to the quirks of Justice Barrett. I think that shift is inevitable whenever there is a single swing vote. The difficulty, however, is that whatever originalist or textualist tendencies Barrett may have, her caution pulls her back. If originalists can't persuade her in Fulton, Brackeen, and other originalist cases, what hope is there?

Vidal v. Elster remains Barrett's most significant decision. When she became convinced that Justice Thomas was wrong about the original meaning of the First Amendment, she reverted to a balancing test that Justice Kagan gladly joined. Are originalist lawyers supposed to just pretend it is a victory to have to make these sort of pragmatic arguments where Thomas is, but Barrett is not, convinced by originalism? That is not much of a victory.

I also don't understand Fragoso's point that we should appoint more appellate judges like Barrett. The first rule of being in a hole is to stop digging. So put down your shovel. No more Souters. No more Robertses. No more Barretts. There is a very deep bench, and we can do much better.

Fragoso concludes:

Conservatives should stop complaining when they lose and go about the business of figuring out how to win.

No. If we fail to discuss our errors in the past, we are doomed to repeat them. No matter how unpopular my writings may be in some quarters--especially those sipping from "dogma" mugs--I will continue shining a light on each and every decision that comes out of the Supreme Court. If my facts are wrong, tell me, I'll correct them. But I think the record is fairly solid at this point. And we cannot ignore the criticism that Justices Thomas and Alito offer of their own colleagues. We cannot pretend it does not exist.