When President Donald Trump nominated Amy Coney Barrett to replace the late Ruth Bader Ginsburg in 2020, conservatives were hopeful the Supreme Court would finally have a solid group of constitutionalists on the bench and push back against decades of judicial activism.
In the minds of some conservatives, particularly those who claim membership in the MAGA movement, that nomination and eventual confirmation by the Senate came with expectations to help push through the Trump agenda. But the role of a Supreme Court justice isn’t to rubber-stamp the agenda of the president or to support a political movement. The fact that a program or policy might be beneficial doesn’t make it constitutional. This reality has led some on the political right and in the MAGA movement to criticize Barrett for being a sellout.
Indeed, Barrett has taken a few frustrating stances, leaving some Republicans wondering if Barrett’s nomination was a mistake. Some of the criticism is justified. Just this year, Barrett sided with leftist justices to deny the president’s request to freeze foreign aid, to reject Trump’s request to block a sentencing hearing on the “hush money” case in New York, and to allow sentencing to move forward after Trump’s felony conviction.
But even when Barrett sides with other conservatives on the court, she’s known for asking tough, pointed questions on both sides of a case rather than taking the easy road and blindly supporting a cause or agenda.
Some of Barrett’s conservative critics are caught up in the emotion of politics and the desire to chip away at decades of leftist activism on the bench, so it’s understandable. And we’ve been burned in the past by Republican-nominated justices who’ve abandoned their allegiance to an originalist interpretation of the Constitution.
Some prominent thinkers expressing misgivings about Barrett include legal scholar Jonathan Turley and popular media veterans like Megyn Kelly and Glenn Beck, to name only a few. However, the backlash against Barrett from conservatives doesn’t seem fair when considering all the factors.
As our own Nate Jackson wrote earlier this year, “Not every Supreme Court justice can be Clarence Thomas or Antonin Scalia, even if you clerked for one of them. Amy Coney Barrett did clerk for Scalia, but she doesn’t seem to have his stalwart originalist backbone. Still, she’s no Sandra Day O’Connor, either.”
It’s important to keep in mind that Barrett has voted with conservatives on a range of critical issues, one of the most important being overturning Roe v. Wade, in recognizing the rights and dignity of the unborn. If Barrett had voted against every other case favored by conservatives, this alone arguably would have made her nomination to the court worthwhile. At other times, Barrett has joined other conservative justices in protecting the right to keep and bear arms, ending race-based admissions to universities, and tackling the administrative state.
These are hardly the positions of a sellout or turncoat.
“To many Americans, the conservative supermajority can look like a unified front reshaping the law through blunt force,” writes Jodi Kantor at The New York Times. “Internally, the coalition is more fractured — six people debating how quickly to move, how far to go, and whether public perception matters.” Whereas Justice Samuel Alito “is in a hurry to take advantage of the conservative dominance on the court, barely disguising his annoyance at times when the other conservatives don’t go along with him,” Kantor adds, “Justice Barrett, who is likely to have a much longer future at the court, measures every move.”
Barrett’s independent approach and unique evaluation of cases coming before the court have drawn the ire of both sides. Barrett has formed alliances with leftists at times by listening to their perspectives and balking at the conservative wing during others. Sometimes, it’s hard to figure out which stance she’ll take.
Listen to the Law: Reflections on the Court and the Constitution is a recently published book in which Justice Barrett provides insight into her approach as a justice of the Supreme Court and her views on the state of the Constitution, which she recently assured everyone “is alive and well.” USA Today reports, “One of the former Notre Dame Law School professor’s main goals in writing her book was to persuade Americans that the justices don’t make their decisions based on personal preference or politics — partisan or otherwise.”
What’s revealing is that Barrett is not the caricature painted by the Right or the Left.
In the book, Barrett highlights a judicial philosophy inspired by the late Justice Scalia. A conservative hero, Scalia is at the center of Barrett’s thinking about cases that come before the court.
In a review of Barrett’s memoir, Noah Feldman writes at The Washington Post, “Of the current justices, Barrett alone worked for Scalia. She has studied his thought more closely than have the others — and she has understood and applied the canons of modern conservative legal thought more faithfully.” Feldman adds, “Specifically, unlike some of her conservative colleagues, Barrett takes seriously Scalia’s personal aspiration to decide cases purely on the basis of what the law says, without regard to any preference for a specific outcome.”
In another review of the book from The Wall Street Journal, Barton Swaim summarizes, “Justice Barrett … makes the case for the U.S. Constitution against a small but influential crowd of academics and intellectuals who would discard it for something more equitable, to use a vogue term. These critics, she rightly points out, fail to appreciate how difficult it is to fashion a constitution that is both practicable and secures the esteem of the governed.”
Justice Amy Coney Barrett will likely infuriate Trump supporters and other conservatives more than a few times in the coming years, but taking everything into account, it seems the view closer to reality is that she has been and will continue to be a conscientious and reliable supporter of the Constitution.
