The Volokh Conspiracy

When Justices Gorsuch and Kavanaugh were added to the Supreme Court shortlist, their judicial records were on full display. Justice Barrett was just the opposite. She had zero judicial record when she was added to the third iteration of President Trump's list. None at all. Indeed, she had been confirmed to the Seventh Circuit only seventeen days before the list was released! Moreover, when Judge Barrett was nominated to the Supreme Court, she had only a handful of high-profile cases. Her submissions to the Senate Judiciary Committee in 2017 and 2020 reveal her paper-thin record. Barrett lacked many of the indicia used to select other members on the list.

It is often said that the Federalist Society selected President Trump's nominees. If that were the case, they could have started with someone who was actually a longstanding member of the organization. But, Barrett was not a member of the Federalist Society while in law school, while clerking, or when she entered the academy. Even while living in the District of Columbia, she never attended the Federalist Society's national lawyers convention--a pilgrimage for conservative lawyers. She was a member in 2005-06, then let her membership lapse for nearly a decade. In 2017, Barrett was asked why she left the Society in 2006. She replied, "I do not recall why I left the Federalist Society in 2006." The dues for faculty are only $25 per year. She must have not found the organization useful--at least at that point in her career. By contrast, she held positions of leadership in the American Association of Law Schools. The Federalist Society hosted a faculty conference at the same time as the AALS convention, usually in a hotel across the street. I do not recall ever seeing Barrett at any of those meetings.

Barrett rejoined the Federalist Society towards the end of the Obama administration in 2014. That year, she had her first speaking engagement at a Federalist Society event. However, after Justice Scalia's passing in February 2016, the former Scalia clerk became a fixture of the Federalist Society speaking circuit, with six talks in the span of a year. That rate would accelerate after Barrett was confirmed to the Seventh Circuit in October 2017. I do not recall ever seeing Barrett at any Federalist Society event before 2017. And as best as I can remember, I met her for the first time in August 2017 at a law professor conference in Florida. She warmly said hello to me, but I was embarrassed that I didn't know who she was; it took me a few moments to recall that she was the professor from Notre Dame who had been nominated to the Seventh Circuit. That was all I knew about her.

Prior to her confirmation to the Seventh Circuit, Barrett had served as a law professor for about fifteen years. She taught constitutional law, civil procedure, federal courts, and other public law topics. During that time, she authored ten law review articles, a few book chapters, several blog posts on PrawfsBlawg, and zero books. These articles focused on statutory interpretation, federal court jurisdiction, and stare decisis. 

To put Barrett's productivity in perspective, a group of professors measures the scholarly impact of law school faculties. And, within each faculty, the professors list the top-ten most cited authors. Professor Barrett did not make the top-ten of her own faculty in 2010, 2012, 2015, and 2018. I'll offer another point of comparison. Stephanos Bibas, a Trump nominee to the Third Circuit Court of Appeals, also served as a law professor between 2001 and 2017. During his academic tenure, Bibas published two books and more than fifty law review articles in roughly the same period of time. Bibas was also a member of the Federalist Society since he was in law school. 

Beyond her few law review articles, Barrett had very little public advocacy. She authored or joined zero amicus briefs while a professor. She did not write any op-eds. In her fifteen years on the faculty, she listed only thirteen newspaper, radio, or television interviews. Again, for a point of comparison, Professor Bibas had more than thirteen pages of media hits. The closest Barrett came to taking a position on a controversial matter of public concern was a 2006 petition, which stated "It's time to put an end to the barbaric legacy of Roe v. Wade." But Barrett would later tell Senators that her position was moral, and not legal. Barrett said she signed the ad while leaving church, at a "table set up for people on their way out of Mass to sign a statement . . .  validating their commitment to the position of the Catholic Church on life issues."  Barrett's jurisprudential slate was not blank, but it was pretty clean.

By all accounts, Barrett was a devoted and beloved law professor. Her students and colleagues adore her. And in my brief interactions with Barrett, I can see why. But her public-facing record was quite unrevealing. The cleanest distillation of her judicial philosophy came in her not-entirely-positive review of Professor Randy's book, Our Republican Constitution. Reading between the lines, Barrett seemed to favor judicial restraint as a jurisprudence. Why then, was she added to the Supreme Court shortlist with virtually none of the indicia of the other candidates?

In 2020, when she was nominated to the Supreme Court, Barrett reported that she participated in roughly 900 cases over the span of three years. A few of those cases were high profile. In Kanter v. Barr, Judge Barrett wrote a dissent, finding that non-violent felons could not permanently be deprived of their Second Amendment rights. In Cook County v. Wolf, Barrett wrote another dissent that would have upheld the Trump administration's "public charge" rule for immigrants who accept public assistance. And in Grussgott v. Milwaukee Jewish Day School, Barrett wrote a majority opinion finding that the ministerial exception barred a Hebrew teacher from suing her religious school. 

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. Again, progressives should be grateful that President Trump picked Barrett, and not someone else on the short list who would have voted closer to Thomas and Alito.

I'll admit there is something unsettling about Justice Barrett's glide path to the Supreme Court. She was added to the shortlist before she had taken any action as a judge. Indeed, she was added with a public record that said virtually nothing about her judicial philosophy. Once she was added to the list, Barrett was on something of a permanent audition. Every opinion she wrote, or did not write, would be parsed as a SCOTUS short-lister. Every speech she gave to the Federalist Society was like a dress rehearsal for her confirmation hearing. Judge Kavanaugh had to walk this tight-rope for the better part of a decade in cases like Seven-Sky. In my view, the best measure of a potential judge's philosophy must predate the moment he or she became an aspiring judge. For Barrett, the time to measure her mettle would have been during her time as a tenured law professor, when she had full autonomy to speak and write on matters of public concern. But she didn't. Ultimately, during Barrett's two-decade career between clerking and the judiciary, she did little to articulate what her judicial philosophy would be. 

Perhaps Judge Barrett's limited academic and judicial record convinced the decisionmakers in the Trump White House that Barrett's judicial philosophy was akin to that of Justices Thomas and Alito. Maybe they disregarded St. Joan. But Barrett's cautious performance on the bench so far should not be surprising.  

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No Supreme Court pick is perfect. Indeed, I am not even sure that any two people could agree on a single set of criteria to judge a Justice. I use the crude proxy of measuring the Trump appointees against Justices Thomas and Alito, the standard bearers of the conservative legal movement. Justice Gorsuch votes most consistently with Justices Thomas and Alito, but is absent on many emergency docket cases that touch on LGBT rights, consistent with his long-ago vote in Kastl. Justice Kavanaugh has proven himself by word and deed to be a disciple of the John Roberts school of judging. This viewpoint was on display in Seven-Sky, but he was selected nonetheless. Still, perhaps placing Kavanaugh in contention was essential to nudge Justice Kennedy to retire. But there were other Kennedy clerks that could have sufficed. Finally, Justice Barrett had something of a blank slate, and could only have been added to the short list based on personal opinions of her. Trust us, she's solid, the conversations likely went. In hindsight, her voting record has been better than that of Justice Kavanaugh, but her cautious streak has kept her distant from Justices Thomas and Alito in high-profile cases. To use baseball analogies, the conservative legal movement could have scored three home runs. However, we didn't even score a run. Justice Gorsuch was a standing double--a solid hit that probably could have been extended to a triple. Justice Kavanaugh was a sacrifice bunt--he advanced the movement, but still scored an out. Justice Barrett was a walk--she never swung but still made it to first.

It is easy enough for conservatives to claim victory, and say good enough! Though I am quite grateful for this new era of originalist jurisprudence, we should never rest on our laurels. Indeed, the failure to identify past errors in the selection process will guarantee that they recur. We should reorient future selections. Any future "short list" produced by a Republican candidate for President should start from scratch. The inquiry should focus on the actions taken before the candidate became an aspiring judge, and those actions should be consistent with the decisions they rendered while on the bench--both positive and negative. It is not sufficient to study a small sample size while the jurist was auditioning for higher office. Rather, a person's experience across his or her entire career must be the complete metric.  The era of trust us and she's solid must come to an end.

For a generation, legal conservatives chanted, "No more Souters." This mantra arose in the wake of the nomination of Justice David Souter, who turned out to be a consistent liberal vote. After NFIB v. Sebelius, the Obamacare case, conservatives adopted a new mantra: "No more Robertses." Never again would conservatives select a Justice who would rewrite a law in the name of judicial restraint. Yet, to replace Justice Kennedy, President Trump managed to select a Justice who has voted with Chief Justice Roberts nearly 95% of the time! Roberts and Kavanaugh are cut from the same cloth. And Kavanaugh consistently votes with Roberts, and the Court's three progressives, to form a majority. But this voting pattern should not come as a surprise. Like with Justice Gorsuch, Judge Kavanaugh's jurisprudence-under-pressure was on full display.

Flash back to 2011, as the constitutional challenges to the Affordable Care Act were trickling up to the Supreme Court. One of the cases, Seven-Sky v. Holder landed before Judge Kavanaugh on the D.C. Circuit Court of Appeals. The other two judges on the panel (Silberman and Edwards) upheld the ACA's individual mandate. This provision, the panel found, could require people to purchase health insurance based on Congress's power to regulate interstate commerce. But Judge Kavanaugh took a very different path based on Congress's taxing power. The analysis here is very complex. Indeed, I devoted an entire chapter of my 2013 book on the Obamacare litigation to Kavanaugh's approach. (You can read an excerpt here.) To over-simplify things, there are four things to know about Kavanaugh's opinion. 

First, Kavanaugh found that the court lacked jurisdiction because the "tax" that enforced the ACA would not be collected until 2014. Critical to that jurisdictional analysis, however, was a finding that the Affordable Care Act in fact imposed a tax, rather than a penalty. Kavanaugh repeatedly referred to a "tax penalty." Having found that the court lacked jurisdiction, Judge Kavanaugh should have simply ended his opinion. But he didn't. He never does. He always keeps writing.

Second, Kavanaugh made a comment in dicta about how the ACA could be put on a surer footing. Specifically, Congress could make "just a minor tweak" to the law, and "eliminate the legal mandate language." Rather than penalizing people who failed to comply with the individual mandate, people without insurance could simply pay a tax to the IRS. The law would shift from a mandate enforced by a penalty, to a choice that resulted in a tax. This change would not be merely one of semantics. This alternative law would be grounded in Congress's broad taxing power, and would avoid the thorny question of whether the federal government could require people to engage in a commercial transaction. 

Third, the federal government expressly invoked Judge Kavanaugh's opinion before the Supreme Court. The Solicitor General argued that no "minor tweak" was needed because the ACA was "materially indistinguishable from Judge Kavanaugh's proposed revision." The argument tracked many of Kavanaugh's observations about how the ACA operates. In the reply brief, the Solicitor General then built on Judge Kavanaugh's observation, and wrote the Court should not construe the ACA to "create[] an independent legal obligation." Rather, the government contended, the ACA as drafted gave people a choice: purchase insurance or don't purchase insurance. And if they chose the latter option, they would have to pay a tax.

Fourth, Judge Kavanaugh's decisions planted the seeds for Chief Justice Roberts's saving construction. Shortly after the case was argued, Harvard Law School Professor Laurence Tribe observed that it was "considerably more plausible to see the law being upheld under the taxing power, as Judge Kavanaugh suggested it would be [as] if the law were interpreted this way." Tribe was right. To save the law, Roberts read the Affordable Care Act in the same fashion as Kavanaugh's tweaked version. Under the so-called "saving construction," the law did not actually impose a mandate to  purchase insurance, but instead merely taxed the uninsured. 

For my book, I interviewed a senior DOJ official who relayed that "Judge Kavanaugh's opinion convinced the Solicitor General's office that the 'tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax.'" DOJ credited Judge Kavanaugh with the "assist" for the argument that would save Obamacare.

Judge Kavanaugh's opinion in Seven-Sky was like a carbon copy of his nascent Supreme Court jurisprudence. First, his lodestar is avoiding controversy, especially in polarized cases. During oral argument, Kavanaugh analogized the Obamacare litigation to the New Deal clash between the Supreme Court and President Roosevelt. He asked, "[W]hy should a court get in the middle of that and risk being another 1935 situation"? Now, Justice Kavanaugh's consistent voting pattern with the Chief Justice reflects a similar mode of avoiding controversy. Public perception pervades all aspects of his judging. Indeed, in his recent remarks to the Eighth Circuit judicial conference, Kavanaugh cited his decisions in Allen v. Milligan and Moore v. Harper as evidence that the Court is not "partisan." In both cases, Kavanaugh voted with the Court's progressive wing. To paraphrase Chief Justice Roberts, the Court as an "institution" functions better when there are fewer 5-4 cases, where all the conservatives vote together. And that is apparently how Kavanaugh defines the Court's legitimacy.

Second, Kavanaugh can never fully remove himself from the political process. He consistently offers compromises as a way to signal moderation. In Seven-Sky, he felt compelled to offer Congress advice on how to modify a statute, even after finding that the court lacked jurisdiction. But why? His efforts to reach out to resolve issues that are not properly before the Court are flatly inconsistent with any professed fidelity to judicial restraint. Yet, to this day, Justice Kavanaugh routinely writes concurrences that purport to settle issues that are not properly before the Court, especially in high profile cases involving abortion and guns.

Third, Kavanaugh employed Roberts-esque dexterity to avoid difficult legal questions. After Justice Kennedy announced his retirement, SCOTUSBlog observed that Kavanaugh in Seven-Sky was "willing to look for artful ways to avoid deciding questions he does not want to decide." Artful? More like inventive. None of the parties raised the specific taxing power argument he relied on. Indeed, during oral argument in Seven-Sky, Judge Edwards asked Beth Brinkmann, who headed DOJ Civil Appellate, whether she had read the obscure provision of the tax code that Judge Kavanaugh was asking about. She replied, "No." Rather, Kavanaugh developed a convoluted argument based on the tax code all by himself--an argument that allowed him to duck the most consequential constitutional question in a generation. SCOTUSBlog concluded that Kavanaugh "recognized that the litigation over the ACA was politically fraught for both the judiciary as a whole and for individual judges who might have aspirations to higher courts, and so he decided to find a way out." Kavanaugh surely knew that his future Supreme Court nomination would hinge largely on that decision, and like Chief Justice Roberts, Kavanaugh found a way to avoid striking down the statute. Indeed Kavanaugh apparently had such aspirations for some time. I wrote the chapters of my book with some precision in order to provide a complete record, should Kavanaugh ever be nominated to the Supreme Court. And so it came to be. 

Justice Kavanaugh is performing just as Judge Kavanaugh's record would have predicted. His record was in plain sight for all to see. Recently, Senator Mitch McConnell observed, "Those who have paid attention to his earlier career are familiar with [Kavanaugh's] restrained, case-by-case jurisprudence." (Kavanaugh was not McConnell's preferred pick after Justice Kennedy announced his retirement.) Indeed, at least with regard to Obamacare, Judge Kavanaugh was to the left of his former boss, Justice Anthony Kennedy. The Court's longtime swing vote would have invalidated the entire Affordable Care Act. Those who were responsible for selecting Justice Kavanaugh were no doubt aware of Seven-Sky, but recommended him nonetheless. But we have at least some evidence that Kavanaugh initially met some resistance.

In May 2016, then-candidate Donald Trump released a list of eleven possible candidates to fill the seat caused by Justice Antonin Scalia's passing. Indeed, two names were glaringly absent from that initial list: Judges Brett Kavanaugh of the D.C. Circuit Court of Appeals and Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Both were well-known appointees of President George W. Bush. I can only conclude that Kavanaugh's omission was deliberate--perhaps due to Seven-Sky v. Holder. At the time, the Wall Street Journal Editorial Board wrote that Trump should add Kavanaugh to the list, who "could replace some of the conservative intellectual heft that the Court has lost in Justice Scalia." The Journal did not mention Gorsuch. 

In September 2016, Trump would release the second iteration of the list, now with 21 names. This time, Gorsuch made the cut. But Kavanaugh was still missing. Again, I can only conclude this omission was deliberate. In November 2016, after the election, the Wall Street Journal editorialized once again that Kavanaugh should be added to the list. In January 2017, shortly after the inauguration, President Trump nominated Gorsuch to fill the Scalia vacancy. Ultimately, no one on the initial list would be nominated to the Supreme Court. 

Ten months later, in November 2017, President Trump released the third iteration of his list, which ballooned to twenty-five names. Two conspicuous names made the cut. At long last, Judge Kavanaugh was included. I don't think Kavanaugh had done anything over the prior year to warrant his inclusion. Rather, whatever resistance there was to Kavanaugh on prior lists was overcome. At the time, I thought Kavanaugh was at last added so he could be nominated to the Court. And so he was. When liberals came out in full force to oppose Kavanaugh's confirmation, I chuckled. The worst thing that could have happened to the left would have been for Kavanaugh to have withdrawn. Just about anyone else on the Trump list would have been to Kavanaugh's right, but without the baggage. Nevertheless, he persisted.

Another name was added to the November 2017 list: Amy Coney Barrett, who was confirmed to the Seventh Circuit Court of Appeals only seventeen days earlier. I will discuss Justice Barrett in the next post.

My wife and I just came back from visiting our older son, who has been on a college work-study this Summer in Venice and Trieste, and then taking a trip to Slovenia (Ljubljana, Bled, Postojna Cave) and Croatia (Pula, Rovinj, Plitvice Lakes, Split, Dubrovnik). It was a delightful trip, even beyond just seeing our son. A few thoughts:

1. Most impressive man-made sight: Venice. Yes, it's full of tourists, but there's a reason for that. A City of Islands, a citypelago, unlike most other places on earth.
2. We spent three days in Venice, but no-one offered us any Dogecoin.
3. Most impressive natural sight: Postojna Cave in Slovenia. Glorious.
4. Leibniz cookies, continental Europe's answer to the Fig Newton.
5. Best meals, from cheapest to most expensive: Geco Pub in Trieste; Ćiri Biri Bela in Split; Arsenal in Dubrovnik; Bled Castle Restaurant in Slovenia.
6. In Trieste, we stayed on Viale 20 Settembre. (a) What's the significance of September 20? (b) That street name, unsurprisingly, is seen in many Italian cities; why is it somewhat ironic in Trieste?
7. It was very easy to get around in English (admittedly, in the relatively touristy places we visited), and the people were generally very friendly.
8. Dubrovnik in Croatia was once the Republic of Ragusa, with the motto "Non bene pro toto libertas venditur auro," meaning "Liberty isn't worth selling for all the gold in the world." Good sentiment! Also, winter is coming.

By virtually any measure, today's Supreme Court is the most conservative bench in modern history. Replacing Justice Antonin Scalia with Justice Neil Gorsuch, rather than Merrick Garland, or someone to his left, preserved the balance of the Court. Getting Justice Anthony Kennedy to retire, and replacing him with Justice Brett Kavanaugh, in many regards, moved the Court to the right. And replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett right before the tumultuous 2020 presidential election proved to be the coup de grâce. On paper at least, there is a 6-3 conservative majority for the first time in nearly a century. 

Still, as I have documented elsewhere, Justices Kavanaugh, Barrett, and to a lesser extent Gorsuch, have voted to the left of Justices Thomas and Alito. The three Trump appointees are simply not as conservative as they could have been. But conservatives should not be surprised by President Trump's Supreme Court picks. Their track record--both what they did and did not do--have predicted their views on the high court. This post will discuss Justice Gorsuch. Future posts will focus on Justices Kavanaugh and Barrett.

In June 2020, many conservatives were stunned by Justice Gorsuch's majority decision in Bostock v. Clayton County. He found that Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees because of their sexual orientation or gender identity. This case was 6-3, with Chief Justice John Roberts, and the progressives in the majority. Justices Thomas, Alito, and Kavanaugh dissented. This decision came as something of a shock to the right. Indeed, Senator Josh Hawley of Missouri warned that Bostock may "represent[] the end of the conservative legal movement." (The rumors of the movement's death were greatly exaggerated.)

Bostock was not a one-off for Justice Gorsuch with regard to federal protections for LGBT people. In several other lesser-profile cases, he parted company with Justices Thomas and Alito. First, in Idaho Department of Correction v. Edmo, the Ninth Circuit held that denying transition treatment for a transgender inmate was unconstitutional. Idaho asked the Supreme Court for an emergency stay of the lower court ruling. Only Justices Thomas and Alito would have granted that relief. Later, Edmo was provided the transition treatment and the case ostensibly became moot. Justices Thomas and Alito would have vacated the lower court's decision. Justice Gorsuch was once again silent, letting this precedent of the Ninth Circuit stand. (Justice Kavanaugh was confirmed one week before certiorari was denied, so he likely did not participate in that case.)

Second, Gloucester County School Board v. Grimm involved a transgender student and bathrooms at a public school. The Fourth Circuit held that both Title IX and the Equal Protection Clause of the Fourteenth Amendment prohibited denying transgender students access to the restrooms assigned to the opposite biological sex. By the time the cert petition reached the Supreme Court, the Biden administration had adopted the Fourth Circuit's reading of Title IX, in light of Bostock. However, rather than resolving whether the Department of Education was correct, the Supreme Court simply denied certiorari. Justices Thomas and Alito would have granted the petition. Justice Gorsuch was silent, as were Justices Kavanaugh and Barrett, letting this precedent of the Fourth Circuit stand

Third, in Kincaid v. Williams, the Fourth Circuit held that the Americans with Disabilities Act required a prison to accommodate an inmate's gender dysphoria. On appeal, the Supreme Court denied certiorari. Justices Alito and Thomas would have granted the petition right away, finding there was "no good reason for delay." Justice Gorsuch, as well as the other two Trump appointees, let the precedent of the Fourth Circuit stand. 

Should Bostock, Edmo, Grimm, and Kincaid have been surprises? Not really. In 2008, then-Judge Gorsuch sat by designation on the U.S. Court of Appeals for the Ninth Circuit. He heard Kastl v. Maricopa County Community College District on a panel with appointees by Presidents Carter and Clinton. The case concerned Rebecca Kastl who "presented full-time as female." After "complaints that a man was using the women's restroom," Kastl was banned "from using the women's restroom until she could prove completion of sex reassignment surgery." The Ninth Circuit had previously held that California law prohibited discrimination against "transgender individuals" based on the "victim's real or perceived non-conformance to socially-constructed gender norms." That opinion was authored by the liberal lion of the Ninth Circuit, Judge Stephen Reinhardt. The Kastl panel then extended that state law doctrine to Title VII. Gorsuch agreed with the Carter and Clinton appointees to extend that Reinhardt precedent to Title VII. Under Gorsuch's view, federal law had all along barred "impermissible gender stereotypes" of a transgender individuals. One such impermissible stereotype was the notion that bathrooms can be assigned based on a person's biological sex. Kastl was an unpublished, non-precedential three-page order. But it was cited by many district court opinions, as well as a case from the Eleventh Circuit. Here Judge Gorsuch decided an important question of federal law in a drive-by fashion.

Throughout his entire career, Justice Gorsuch has read the protections of federal law broadly--including the Equal Protection Clause, Title VII, Title IX, and the ADA--to broadly protect LGBT rights. Bostock, Edmo, Grimm, and Kincaid should not have been a surprise for anyone who read Kastl. And those who were responsible for nominating Gorsuch were no doubt aware of Kastl, and recommended him nonetheless.