When Justice Professor Merged With Justice Barrett

Hunter presented a weird syncretism between Amy Coney Barrett's scholarship and her jurisprudence.

For many years, Ruth Bader Ginsburg was a professor and an advocate. She had written and litigated extensively on many constitutional law issues, including sex discrimination and abortion. When Ginsburg became a circuit court judge, and then a Supreme Court justice, no one would have expected her to abandon all of her views on constitutional law. Of course she insisted during her confirmation hearing that she would approach issues with an open mind. But to no one's surprise, Ginsburg's constitutional jurisprudence largely reflected her scholarly agenda. I think much the same can be said of Professors Scalia, Breyer, Kagan, and other academics who became Justices. Indeed, these professors were nominated based in part on their scholarly writing.

Yet, I cannot recall any Justice so clearly stating that her judicial opinion was equivalent with her scholarly opinion--that was until I read Justice Barrett's concurrence in Hunter v. United States.

Barrett cites two of her own law review articles as support for her judicial opinion:

Like JUSTICE THOMAS, I am skeptical that the SupremeCourt possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The SupervisoryPower of the Supreme Court, 106 Colum. L. Rev. 324 (2006). At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883–884 (2008). The former concerns narrow, discretionary rules; the latter involves doctrines, like preclusion and abstention, which are "settled by tradition or emergent consensus." Id., at 884.

The use of the word "I" here is fascinating. Justice Barrett is "skeptical" of the supervisory power, citing Professor Barrett. Justice Barrett has drawn a distinction, citing Professor Barrett. This is a weird syncretism between Amy Coney Barrett's scholarship and her jurisprudence. Is there any daylight between what Professor Barrett wrote about two decades ago and what Justice Barrett thinks now? I doubt it.

Supreme Court nominees are often asked about their past writings. The stock answer is that those writings represented their role as an advocate or professor, but they will approach each case with a fresh perspective. Of course this response is not accurate, as Justices do not forget everything they once knew. And Justice Barrett's self-citation proves the point.

Update: My thanks to Adam Liptak for linking to this post in his New York Times newsletter. He wrote:

Josh Blackman made an interesting point in a post on The Volokh Conspiracy, using an interesting word, about another aspect of the case on appeals waivers. He said a concurring opinion from Justice Amy Coney Barrett demonstrated "a weird syncretism" between her scholarship and jurisprudence.

I had to look that up. "Syncretism" turns out to mean, more or less and among other things, the blending of two disciplines.

I learned about the concept of syncretism in Church of the Lukumi Babulu Aye. Justice Kennedy offers this definition of Santeria:

This case involves practices of the Santeria religion, which originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, "the way of the saints." The Cuban Yoruba express their devotion to spirits, called oris has, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments.