The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Have We Learned about Justice Barrett?
Perceptions of Amy Coney Barrett may have changed more than her jurisprudence or voting record.
Sunday's New York Times featured an extensive profile of Justice Amy Coney Barrett. The article contained one interesting tidbit about the PennEast case. Otherwise the article offered relatively little that was new. It did, however, provide plenty of material for the gristmill.
A key portion of the article summarizes a preliminary analysis of Justice Barrett's voting record over her first three-and-a-half terms on the Court. That's not much to go on, but it allows for the editors to include some pretty graphs and provides the basis for over-confident assessments of trends in Justice Barrett's jurisprudence.
As longtime readers know, I believe Court watchers place too much weight on individual terms, none of which (in isolation) is ever representative of the Court's overall work. Over time we often see significant vacillation in the percentage of cases decided by any particular margin and rate at which particular justices agree with each other or join the majority. In OT2022 over 45 percent of the Court's decisions were unanimous. Yet only one year before the percentage of unanimous opinions was only 29 percent. The only thing that really changed between these terms was the Court's mix of cases.
The unrepresentative nature of individual terms is only increasing as the Court's docket shrinks, and this magnifies the problem of analyzing voting patterns. If the Court hears only 60 cases or so, and most of the cases are decided unanimously or by an overwhelming majority, a handful of cases can produce dramatic swings. This means we should be circumspect about looking at a few terms and declaring the existence of a definitive trend.
The problems are compounded if one is trying to assess how "liberal" or "conservative" a justice is, particularly insofar as the change in the Court's composition has changed the composition of the Court's docket, both because of what cases the justices choose to hear and because of what questions advocates are willing to put before the Court.
All this is a long way of saying I am skeptical of any claims that Justice Barrett is "drifting" to the left, or that we have seen any discernible shift in her voting pattern to date. The idea that a justice who joined the Court's majorities in Dobbs, Sackett, SFFA, 303 Creative, Cedar Point, Kennedy, West Virginia v. EPA, Biden v. Nebraska, Corner Post, Loper Bright Enterprises, and Jarkesy (just to name a few) is anything but a solidly conservative justice defies comprehension. That Justice Barrett did not join the dissenters in cases such as California v. Texas is more a sign of clear thinking than of lack of courage, and it's hard for me to get worked up over a justice's failure to rubber stamp every emergency docket filing by the Trump Administration.
My co-blogger Josh Blackman does not seem to share these reservations. In a lengthy post, "See, I Told You So About Justice Barrett," he dons the mantle of Cassandra and suggests that Kantor's article confirms his predictions of doom from Barrett's elevation to the Court. But I am not sure the article confirms Blackman's predictions so much as it provides fodder to feed his current grievances.
Back in 2020 when Justice Barrett was facing confirmation, Blackman was not suggesting she would be a disaster on the Court. Quite to the contrary, he lavished her with praise.
In an October 2020 post about her confirmation hearings, "The Naturalness of ACB," he wrote:
I am eager to see Justice Barrett hit the speaking circuit, and make her vision of the law accessible to the masses. She has the rare combination of personality and intellect, which will allow her to bring the Constitution to the people. But--and here is the huge but--I think Judge Barrett may have the humility and modesty to prevent that rock-star status from going to her head. Fame affected both Scalia and Ginsburg in a bad way. I hope ACB can resist the siren call. . . .
she is really, really well-versed in constitutional doctrine. She readily talked about "external constraints" on federal power. She recognized that you cannot talk about Brown v. Board of Education without also talking about Cooper v. Aaron. . . She refused to indulge in the myth of judicial supremacy, and referenced Ex Parte Merryman. . . . She casually explained that Section 2 of the 14th Amendment permits disenfranchisement of felons but the Second Amendment has no such constraint. We have to keep in mind that ACB has been a constitutional law professor for some time. She speaks our language. I think Justices Gorsuch and Kavanaugh have a deep familiarity with these doctrines. They were raised in our legal culture. But ACB has internalized it through years of scholarship. For her, it is natural.
I honestly did not think I would praising a nominee in this fashion. I really didn't. I hadn't planned to even watch the proceedings. I've long considered the hearings to be a vapid ritual--meaningless Kabuki theater. But ACB drew me in. She made a connection that I hadn't expected to experience. I think even the Democratic Senators saw that connection. And so will the American people.
And in a follow up post on her swearing in he added:
She continues to impress me in ways that I frankly hadn't expected. There is a sincerity behind every word that really resonates. . . .
you can tell that the confirmation process actually made an impact on her. No, not in the sense of the Thomas and Kavanaugh hearings, where the Justices were forever scarred by the process. Rather, she witnessed first hand how many of the Senators were concerned primarily, if not exclusively with policy outcomes. The overwhelming majority of questions asked ACB about her views different social issues, such as abortion, gay rights, etc. At each juncture, Judge Barrett refused to answer those questions. Critics thought she was evasive. But she truly did not think her own views would be relevant. During her remarks, Justice Barrett used this experience to highlight the dichotomy between senators and judges. Senators are duty-bound to follow their preferences. But "it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them." . . .
No matter how many new seat are added to the Court, Justice Barrett will still loom large over the others. Her greatest contribution will be to enrich our constitutional culture. I mean that sincerely. She has the charisma and presence to elevate legal discourse to the next level. And I think she will inspire generations of conservative women to aspire to greatness, without eschewing their beliefs. With time, she may even be able be able to fill the titanic void left by Justice Scalia.
I can't wait till she gets started.
As readers may suspect, I do not believe Justice Barrett was a poor choice for the Court. Quite to the contrary, I think she has distinguished herself as a careful, thoughtful jurist who provides a distinct, welcome, and powerful voice on the Court. I do not always agree with her, particularly in environmental cases (such as Ohio v. EPA and San Francisco v. EPA), but I have tended to find most of her writings quite persuasive. Where I think she has gotten things wrong, I do not attribute it to a lack of "courage," but to genuine jurisprudential disagreement.
All that said, I would discourage making any sweeping judgements about a justice who has not even sat on the Court for a full five terms. Justice Barrett will be on the Court for many years to come, and we will have ample time to analyze her jurisprudence. It's a bit premature to look upon her works and despair. Indeed, I am not sure such a time will ever come.
