A Response To National Review's Editorial on Justice Barrett

"On the Supreme Court’s interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues."

Earlier this month, National Review published an editorial defending Justice Barrett, titled "Injustice Toward Barrett." The editors graciously invited me to write a response, which was published today. It is titled Counting All of Justice Barrett's Votes. Here is the introduction:

Of President Trump's three Supreme Court appointees, Justice Amy Coney Barrett has been subject to the most severe criticism. She's earned it. Most of the defenses of Barrett, including in these pages, highlight the important conservative majority opinions she has joined. It's true that she joins Justices Thomas and Alito, the Court's standard-bearer conservatives, in nearly 90 percent of the merits cases. But that voting record is not something that should have ever been in doubt. President Trump knew better than to appoint another moderate like Justice Sandra Day O'Connor, let alone a liberal like Justice David Souter.

Barrett is unquestionably a judicial conservative. Still, a complete assessment of Justice Barrett requires looking beyond the merits docket. On the Supreme Court's interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues. Conservatives should not blind ourselves to where Barrett has consistently fallen short. All you have to do is count all her votes.

I walk through nearly three dozen cases on the interim and certiorari dockets where Justices Thomas and Alito were on one side, and Barrett was on the other.  Here is a snippet:

During the pandemic, Justice Barrett's first concurrence upheld California's ban on singing in church. Barrett was silent about challenges to state vaccine mandates brought by religious health-care workers. Barrett reversed a lower court ruling in favor of Navy Seals who objected to the military's vaccine mandate. Barrett stood by while the Biden administration pressured social media companies to deplatform conservatives. (Barrett would ultimately write the majority opinion finding that none of the conservatives actually suffered any injuries.) Barrett did not join the conservatives in support of a Florida law that prohibited restaurants from showing "adult live performances" to children. Barrett voted to block a Texas regulation of social media companies. Barrett refused to block a Biden-administration policy that required emergency room doctors to perform abortions. In this last case, Justice Alito wrote that his colleagues "simply lost the will to decide the easy but emotional and highly politicized question." Alito added that Barrett, among others, did "not want to tackle this case" and instead "ducked."

There's more. Barrett ruled that Texas could not install razor wire in the Rio Grande River to stem an influx of migrants. Barrett did not join the conservatives who reversed the Biden administration's decision to cut Oklahoma's Title X funding after it banned abortion. Barrett ruled that the Trump administration must pay nearly $2 billion in foreign aid. Barrett ruled that the Trump administration had to pay certain DEI grants. Barrett denied relief to South Carolina, which sought to limit bathroom use in schools based on biological sex. Barrett would not have allowed President Trump to deploy the National Guard to Illinois to assist in immigration enforcement. Justice Barrett greenlighted the shipment of mifepristone to states that ban abortion. . . .

Since Barrett joined the Court in 2020, there have been about a dozen contentious cases where Justices Thomas and Alito, plus either Justice Gorsuch or Kavanaugh, voted to review a case, and where it is fairly clear that Justice Barrett voted no. Given the Court's shrinking docket, each of these cases would have yielded a landmark decision. Justice Barrett likely turned away religious liberty petitions involving a Christian florist who refused to make arrangements for same-sex weddings, a Catholic diocese that refused to fund abortions for its employees, and an Indian group that tried to stop the destruction of its sacred site. Justice Barrett punted on pandemic-era cases involving a challenge to a state vaccine mandate and the case of a religious health-care worker who was fired for refusing the Covid-19 vaccine.

Justice Barrett did not signal a vote to grant petitions from a Catholic hospital that was forced to perform a hysterectomy on a transgender patient, a Christian counselor who was barred from counseling children to be comfortable in their own bodies, and parents who challenged a school's policy to encourage students to transition without parental knowledge. In this last case, Justice Alito warned that "some federal courts are succumbing to the temptation" to "avoid[] some particularly contentious constitutional questions." This message seems to be tailored to Barrett as well.

These thirty-odd cases are not minor. They are the sort of bread-and-butter issues that conservatives care most about. And Barrett's voting record was consistent.

I close on a note of optimism:

Fortunately, as Justice Barrett has just crossed the five-year threshold on the Court, there is still much room left for improvement on the interim and certiorari docket. Critics and supporters alike can just read all her opinions and count all her votes.

The votes are the votes are the votes. We can argue about many things, but at the end of the day, each Justice has one vote which she can use or not use.