In Defense of Amy Coney Barrett: An Examination of Her Record

Yesterday I explained why putting Justice Amy Coney Barrett on the Supreme Court was the only way for Republicans to flip Ruth Bader Ginsburg’s seat. Today I will explain how her performance on the Court is consistent with her background and what she told the Senate during her confirmation process. I will also explain how—while her background may explain her vote in Department of State v. AIDS Vaccine Advocacy Coalition—the correct application of Barrett’s apolitical proceduralism should yield a different outcome in many of the current cases against President Trump. I will conclude by offering advice to the conservative legal movement regarding how best to engage with Justice Barrett.

Truth in Advertising

A growing complaint on the right is that Barrett isn’t what conservatives were told she would be. In fact, Barrett’s tenure is entirely consistent with her public profile up to her appointment.

Most importantly, Barrett got rid of Roe v. Wade. If you go back and watch her notorious Seventh Circuit hearing, what you’ll see at the outset is a thoroughly impressed and friendly Senator Dianne Feinstein, who was floored by Barrett’s personal story. It wasn’t until a second round of questioning that Feinstein informed then-Professor Barrett that the dogma lived loudly inside her. At some point between those two questions, Feinstein’s staff surely got to her and told the senator that she needed to put the screws to this nominee. Why? Because they had in front of them a brilliant Catholic mother of seven who was a protégée of the late Justice Scalia—in other words, a heat-seeking missile aimed at Roe v. Wade.

In a providential twist, Feinstein’s efforts to protect Roe from Justice Barrett created the inevitability of Justice Barrett by turning Judge Barrett into Judge Dogma—as then–White House Counsel Don McGahn called Barrett at her Seventh Circuit investiture.

The reason social conservatives went to the mattresses for Barrett in the fall of 2020 was because they knew she was one of them. They intuited it from her background and how Democrats reacted to her. They understood that, with her on the Court, they could finally kill the white whale of Roe v. Wade. They were right.

Other than on the question of Roe, Barrett’s record and testimony made it clear that she was an originalist, a textualist, and a formalist. Her academic record consisted of technical work on originalism, textualism, and federal courts. Her time on the Seventh Circuit demonstrated a record of clarity and analytical rigor that followed precedent and—where appropriate—urged the court to better align its jurisprudence with the original understanding of the Constitution.

It was thus no surprise at her hearing when Barrett firmly rejected claims by Democrats that she was a partisan activist and, instead, insisted that her role on the Supreme Court would be to apply the law by her best lights as an originalist.

Take a look at what she said in her hearing: “I agree . . . that the courts should not be politicized.” And, “as I have said a number of times through the hearing, judges stay out of politics. So their jurisprudential philosophies are not designed to yield particular results.”

At one point, echoing her mentor, Justice Antonin Scalia, she explained that judges making policy violated democratic principles:

Well, I think part of the rationale for courts adhering to the rule of law and for judges taking great care to avoid imposing their policy preferences is that it is inconsistent with democracy.

Nobody wants to live in accord with the law of Amy. I assure you my children do not even want to do that. So I cannot, as a judge, get up on the bench and say, you are going to live by my policy preferences because I have life tenure and you cannot kick me out if you do not like them.

Senate Judiciary Committee Chairman Lindsey Graham summarized her position by explaining, “[t]here has already been an example in the Seventh Circuit where you upheld a legislative provision that restricted access to abortion clinics in terms of protesting. . . . So I am highly confident that you will judge every American based on their case, not the law of Amy.”

Barrett was also clear that a commitment to originalism does not entail a commitment to identical outcomes among originalists. As she explained to Democratic Senator Chris Coons, 

I do share Justice Scalia’s approach to text, originalism and textualism. But in the litany of cases that you have just identified, the particular votes that he cast are a different question of whether I would agree with the way that he applied those principles in particular cases. . . . [E]verything that [Scalia] said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia. So I share his philosophy, but I have never said that I would always reach the same outcome as he did.

Confirmation hearings have an element of kabuki to them, but it would be wrong to assume that nominees are always engaged in puffery. Barrett was very clear in her hearing that she was a textualist and an originalist—but that textualism and originalism do not guarantee particular policy outcomes, even among textualists and originalists. Anyone who was expecting otherwise either simply wasn’t paying attention or assumed—like Democrats—that she was lying.

Process-Formalist Originalism

While I will leave it to others to analyze the details of Barrett’s jurisprudence as a justice, it’s not hard to detect some overarching themes—themes that are consistent with her prior record and what she told the Senate.

To begin, she is very clearly a textualist and an originalist. This has presented some problems for the right, such as when she refused to overturn Employment Division v. Smith because the proposed relief was fundamentally non-originalist. But it has also yielded some great analysis, like when she responded definitively to Justice Kagan’s endless trolling about the supposed non-textualism of the Major Questions Doctrine in a masterly concurrence in Biden v. Nebraska.

Sometimes her originalism frustrates insofar as it limits standing, the doctrine that establishes who precisely can bring a lawsuit. But this is entirely consistent with her background. After all, it was Scalia who wrote Lujan v. Defenders of Wildlife, the seminal case establishing—and restricting—modern standing doctrine. Its basis was in originalist doctrine—that courts only hear “cases and controversies,” not generalized grievances—and its results were conservative: it closed the courthouse door to the noxious left-wing cause litigation that had permeated the Warren and Burger Courts. That she made her jurisprudential bones on a Seventh Circuit dominated by justiciability sticklers like Judges Frank Easterbrook and Diane Sykes made it even clearer that this wasn’t a doctrine she would abandon for the sake of causes she might agree with.

She is also a formalist. A former civil procedure and federal courts professor, she clearly believes that the technical minutiae of justiciability matter. This can be hard for those of us in politics to wrap our heads around, because we’re realists at heart: who wins matters more to policymakers than the magic words and sorcery of federal jurisdiction. Not so for Barrett.

The area where this has the greatest effect, it seems, is on the emergency or “shadow” docket. When Barrett was a law clerk, emergency petitions to the Court were almost all frivolous death-penalty appeals. The real action was on the merits docket: cases where conflict among the circuits justified the Supreme Court’s setting down clear rules for the country after full briefing and oral argument. In the wake of the promiscuous expansion of the universal injunction over the last decade, that’s changed. Now cases don’t have time to percolate. District judges decide matters quickly for the whole country, usually in a hand-picked circuit likely to agree with them, thus forcing the Supreme Court to step in quickly and resolve the question on an imperfect record.

Barrett clearly thinks this is no way to run a railroad, although she hasn’t necessarily said it in so many words. One of the issues with the emergency docket is that orders aren’t necessarily justified publicly, so the main evidence we have is her seeming reluctance to grant relief on an emergency posture.

Assuming she was serious in her public positions before ascending to the Supreme Court, this shouldn’t surprise anyone. The speed of these cases frequently engenders creative process arguments that can run afoul of the process formalism found in orthodox federal courts treatises. The cases are almost always fraught with politics, inviting the Court to take a side on a contentious issue without careful deliberation. Snap emergency orders are not the way to establish thoughtful originalist jurisprudence.

Even her recent vote that caused all the Sturm und Drang on the right—Department of State v. AIDS Vaccine Advocacy Coalition—can be understood in this light. Judge Amir Ali of the U.S. District Court for the District of Columbia had issued a temporary restraining order (TRO) forcing the federal government to pay out $2 billion in USAID funds by an absurd deadline. TROs, of course, are generally not appealable, but the government needed some recourse because it claimed it couldn’t, in fact, comply with the order—even as a technical matter. John Roberts provided relief in the form of an administrative stay, which he then lifted—thanks to Barrett’s vote—after the preposterous deadline passed.

Reading the terse opinion of the Court, they clearly expect Ali to cut the nonsense and provide a preliminary injunction so it can go through the standard appellate process. And while they may have gotten it wrong—more on this to come—it’s not unreasonable for the Court to deny extraordinary preliminary relief based on a limited presentation of the case and under a heightened standard for success. To claim otherwise and announce that the sky is falling is partisan histrionics.

In sum, we see an apolitical preference for established formal processes by which deliberative, originalist jurisprudence can ultimately be issued if warranted. Conservatives can be upset about this process-formalist originalism, but when it comes to Justice Barrett, it’s truth in advertising.

Government-by-TRO

To be clear, Justice Alito’s dissenting argument in AIDS Vaccine Advocacy Coalition was highly persuasive. And while judges shouldn’t take politics into account in the substance of their decisions, they should understand the political context of their cases. Here, it’s the district courts that are being overtly political, and allowing them to do so by standing on legal formalities is itself a political choice, while restraining them—far from being political—would be consistent with sound process theory.

The fact is that the government-by-TRO we are seeing from liberal trial courts is not only itself political but deliberately irregular. Progressive judges are using illegitimate means to stymie the president because they know they won’t be stopped. It’s not “political”—at least in any problematic sense—for the Court to recognize the iniquity in holding the Department of Justice to a Marquess of Queensberry–style federal courts doctrine while Judge Amir Ali is throwing sand in their eyes and kicking them in the shins.

The inevitable consequence of that lawless behavior by district courts will be complementary lawless behavior by the executive. That point hasn’t arrived yet, but it will unless the Supreme Court stops allowing district courts to manipulate process formalism to evade appellate review. Doing so would, in fact, be consistent with a procedural formalist approach because it would force everyone to play by those rules—not just the government.

What Next?

The fact that there are six Republican appointees on the Supreme Court doesn’t relieve conservative litigants of the need to convince five justices to agree with their position. Of course, the justice who is the “fifth vote” can vary considerably by issue. For example, in areas where Gorsuch is likely to agree with the progressives—like criminal law, Indian law, or gay rights—it’s often Roberts. More globally, some evidence suggests that it’s actually Kavanaugh who holds the fulcrum post on the Court. But if you’ve spent the last couple weeks on X, you’ve heard that it’s Barrett. Well, assuming for the sake of argument that this is correct, then the conservative legal movement needs to figure out how to litigate cases to Barrett, and those in the judicial-selection business need to take the reality of her fifth vote—and her life tenure—into consideration when picking appellate judges.

For a decade or so, conservatives had to litigate their cases to Justice Anthony Kennedy because he was the fifth vote on the Court. This meant, more or less, appealing to his philosopher-king proclivities by having the right client and the right quasi-moral arguments. Then, for a couple years, they had to litigate to John Roberts. This was an improvement because his idiosyncrasies aren’t nearly as personalized as Kennedy’s; instead they are institutional. In a certain sense, the winning presentation shifted from “please solve this problem for the country” to “don’t worry: solving this problem for me won’t solve it for the country.” Now conservatives supposedly need to litigate to Barrett. So instead of appeals to institutionalism, it’s appeals to process formalism, textualism, and originalism.

In other words, we have apparently ended up with the system Justice Scalia advocated in his work A Matter of Interpretation. The fifth vote no longer turns on Kennedy’s moral philosophy or Roberts’s political judgment, but on a knowable and debatable body of law and jurisprudence. Conservatives should generally welcome that.

We see some evidence of it happening in the religious-liberty space. When Barrett refused to kill Smith, some social conservatives wailed in despair. Others have proceeded to dive into the historical sources to build a better originalist case against Smith. This will probably take some time—and who knows if it will persuade?—but that’s the correct way to approach Barrett and the Court.

The other way conservatives will need to approach the Court is through judicial selection. It’s not just the advocacy of parties that moves justices; it’s also the advocacy of their peers as they circulate drafts. Given that Barrett isn’t going anywhere and is highly unlikely to change her approach to substance or process, the best way to deliver consistent conservative outcomes on the Supreme Court is to appoint justices who can work effectively within Barrett’s process-formalist originalism—which would probably also have a salutary effect on Kavanaugh. Justices who would seek to supplant it with a more realist conservative jurisprudence and rhetoric will find themselves concurring and dissenting away for decades on a fractured Court.

For lower courts, the situation is more complex. On circuits dominated by liberals (such as the First or Fourth or the District of Columbia), the only chance conservatives have is intervention by the Supreme Court. It therefore makes sense to find conservative judges for liberal courts who can effectively speak the language of process-formalist originalism in order to optimize the chances of Supreme Court review. On circuit courts dominated by conservatives (such as the Third, the Fifth, the Sixth, or the Eighth), the opposite is probably the case. They don’t need the Supreme Court to save them; they’re typically the court of last resort. In that case the more William Rehnquists the better, because Barrett’s jurisprudential inclination is not to police their day-to-day rulings.

In the end, conservatives have a 6–3 Supreme Court. That doesn’t mean they will win all the time, but they will win quite a bit on supremely important issues. True, liberals do win all the time with Justices Sonia Sotomayor and Ketanji Brown Jackson, but Republicans have spent decades arguing that this kind of outcomes-based jurisprudence is lawless—a position they and Barrett each reiterated during her confirmation process.

While it’s understandable that Republicans worry about ideological drift given the experience of David Souter and Anthony Kennedy, the simple reality is that Barrett is no Souter or Kennedy. Just look at the record of epochal conservative victories she has participated in: Dobbs v. Jackson Women’s Health, New York State Rifle & Pistol Association v. Bruen, Kennedy v. Bremerton School District, Loper Bright Enterprises v. Raimondo, Students for Fair Admissions v. Harvard, 303 Creative LLC v. Elenis, Biden v. Nebraska. These are blue-chip decisions—and her vote was crucial to achieving them.

This is because her presence has fundamentally shifted the center of the Court. For decades, conservatives could only win by fitting their cases into the politically liberal framework of Kennedy. Now—thanks to Barrett—the path to victory is to fit it into the judicially conservative framework of Scalia. That alone is a political and jurisprudential victory, even if it doesn’t result in litigation victories in all cases.

Given the political realities of October 2020, the only reason that we have our current Scalia-oriented Supreme Court is because Judge Barrett was rested and ready. This is exactly what Barrett said would happen during her confirmation—not that Republicans would always win, but that she would apply Scalia’s jurisprudence. As a result, the Supreme Court is the best it’s been in a century. Conservatives should stop complaining when they lose and go about the business of figuring out how to win.

Image courtesy of the White House and sourced via Wikimedia Commons.