The least noticeable participant in the present conservative revolution on the Supreme Court is also the most significant. With her fifth vote in several significant decisions, most notably Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, Justice Amy Coney Barrett helped the court take a hard-right tilt. But she hardly sought to defend herself during the most contentious term in recent history. In contrast to the other two justices appointed by Donald Trump, Barrett exhibited caution. By the conclusion of the semester, she had developed into a mysterious character whose legal reasoning had become increasingly opaque and perplexing. She seemed to fade from view even as her court became more hostile.This deliberate withdrawal from the spotlight hints to the challenges Barrett encountered in her second season as a player. The justice was unprepared for many facets of her position, and as a result of a string of unintentional mistakes, she has tried to disappear whenever possible. Because of this, the person who solidified the Republican Party's hold on the federal judiciary is perceived more as a devoted backbencher than as an original thinker.
Progressives may be tempted to believe that Barrett is deliberately hiding out in the intellectual shadows so she may cause the most harm with the least amount of criticism. But the fact that the justice is simply out of her depth may be a more appropriate reason.
The fact that Barrett had the least preparation and training for the particular demands of the position among all the sitting justices is a contributing factor in the issue. She worked as a professor at Notre Dame Law School for the most of her career, where three times her students selected her as distinguished professor of the year. Her scholarly writing was frequently technical, obscure, and dry, and she shied away from endorsing any divisive viewpoints. She served on a federal appeals court for less than three years until Donald Trump selected her to the Supreme Court. Her opinions appeared to be chosen to increase her chances of winning a SCOTUS seat.
No other member of the court today had such little prior public service experience. In the lower courts, Justices Sonia Sotomayor, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson all completed lengthy terms. Unlike Barrett, Chief Justice John Roberts and Justice Clarence Thomas held important government positions prior to their brief stays on the lower courts. The most comparable example is Justice Elena Kagan, who entered the Supreme Court without ever having served as a judge. Kagan, however, spent four years working for Bill Clinton's administration before becoming the solicitor general for Barack Obama. A superb training ground for the Supreme Court, she also presided over a snake pit of rival egos for over six years as dean of Harvard Law School.
Whether they like it or not, judges are politicians. Due of their enormous authority, everything they say and do will be closely scrutinized. This examination matters a lot since the court's power depends on the public's opinion of its legitimacy. They give the appearance that they are using brute authority rather than principled legal judgment when they refuse to explain their votes.
This is particularly true of Barrett, whose last-minute confirmation to succeed the liberal Ruth Bader Ginsburg threw the entire judicial system into disarray. In order to secure GOP control of the judiciary, Trump hurriedly appointed her to the bench during an election with the help of Sen. Mitch McConnell. She evaded questioning throughout her hearings by giving cryptic platitudes in an effort to keep her confirmation from being derailed. This action predicted her judging approach, which was to give as few answers as possible in order to keep the most discretion.
Since then, Barrett has not done much to clear the politicized and illegitimate odors that tainted her appointment. Her public relations efforts have failed. Before she had garnered even a passing consideration from the general public, she signed a lucrative book contract for her memoirs. In September, the justice stood next to McConnell at a facility bearing his name and said that she and her colleagues weren't "a bunch of partisan hacks." (She restricted the event's press presence.) Before declaring that the court's work was "purely results-driven" in April, she advised Americans to "read the opinions."The only issue with such directive is that the court significantly changed the law during her tenure through the shadow docket without releasing any rulings. By a 5-4 decision, it did so once more just two days after Barrett's read-the-opinion speech. She silently merged into the group.
Barrett's oral argument performance has also proven confusing. She frequently asks incredibly detailed questions about a minute detail of the case, as if to demonstrate her thorough understanding of the record or her deft reasoning. Then she endorses a rigid, uncompromising viewpoint that entirely dismisses her purported worries. She frequently presents herself as a sensible moderate who is sincerely debating the topics at hand; nevertheless, in polls, she is just another unquestioning supporter of a regressive outcome.
The question Barrett asked regarding "safe haven legislation," which allowed parents to surrender their newborns without facing consequences, during arguments in Dobbs was perhaps her biggest mistake. She implied that these rules rendered abortion unnecessary, as if nine months of an unintended pregnancy weren't a significant thing. She wasn't prepared for prime time based on the tone-deaf comment and another one regarding the "Jewish-Palestinian issue."
When decisions are made, Barrett typically disappears from the scene. She is not given the opportunity to write landmark decisions because she is the junior justice, although she is free to do so. Through concurring opinions outlining their votes, Gorsuch and Kavanaugh lost little time in making their stamp on the court. These distinct works seek to provide a rational defense of the justices' position and to set their intellectual endeavors apart from the conservative pack.
Instead of speaking, Barrett has decided to be silent. She has joined several significant 6-3 and 5-4 decisions this term that have moved the law to the right without a word of explanation. The judge left no explanation of her decision to overturn Roe in Dobbs. In Oklahoma v. Castro-Huerta, a harsh 5-4 attack on tribal sovereignty, she did not contribute anything. Nothing in the cases of West Virginia v. EPA, which limited climate regulations, Kennedy v. Bremerton, which permitted Christian prayer in public schools, Carson v. Makin, which mandated public funding of religious education, Vega v. Tekoh, which undermined Miranda warnings, or the harsh habeas rulings, which permitted states to execute innocent people, allowed for the execution of non-consenting people.
Barrett typically keeps his concurrences brief and intellectual. She considers the particular historical era that judges should consider when assessing the original meaning of the Constitution in her ruling in the concealed carry case, for example. (As if the majority won't begin with its favored conclusion and selectively present the evidence to back it.) She merely summarized her own 2006 law review paper in her judgment in the Boston bomber case, which is a snoozer regarding the power of federal appeals courts to impose procedural standards on district courts. For a justice who was expected to establish a strong free exercise jurisprudence, her few concurrences on matters of religious freedom were shockingly vague and noncommittal.
The argument put up by Barrett's supporters is that her modesty is a commendable quality, an indication that she is approaching her work with discipline, constraint, and a welcome lack of vanity. This allegation is difficult to reconcile with the justice's enthusiasm to travel the public speaking circuit, where he delivers partisan remarks and disparages journalists. Being willing to speak in political forums but keeping quiet about the actual judicial job shows one is just a political actor rather than being modest.
Barrett's votes also don't display modesty or restraint. Over the course of the previous term, Barrett shifted to the court's Thomas wing, moving away from Roberts and Kavanaugh. Roberts and Kavanaugh frequently sided with the liberals when the court was split 5-4, whereas Barrett frequently sided with the extreme reactionaries. She made an effort to stop Biden from requiring vaccinations for healthcare workers and from overturning Trump's anti-asylum stance. She aimed to prevent returning veterans from suing state employers who treat them unfairly. She also made an effort to stop death row inmates from successfully objecting to their execution procedure.
Many progressives have come to the conclusion that Barrett is precisely what she claims she is not: a partisan hack based on this evidence. Maybe she is. She does, however, teach law as well. Her bumpy beginning highlights the disadvantages of appointing a law professor to the highest level of the judiciary. Academic preparation for the Supreme Court is inadequate unless one holds a position of leadership, such as dean. To advance their scholarly work, professors engage in discussions, publish articles in law reviews, and go to conferences. Instead of using power, they contemplate and discuss it. Most people don't anticipate that millions of total strangers will carefully review their complete record.
Barrett has approached this position as an academic from the beginning. Instead of seeing instances as disagreements between actual people with potentially fatal outcomes, she considers them as fascinating mental experiments. Her worst inquiries, such as the "safe haven" catastrophe, sound like idle chatter. Barrett might easily pose such a query to a student in an effort to gauge the persuasiveness of their position. However, throughout oral arguments, it appeared to be a callous reduction of the terrible responsibilities that pregnancy imposes.
All of this may not be important. Many conservative law professors were nominated by Trump and the Federalist Society because they prioritized ideological purity over real-world experience. With life tenure, they said, the learning curve is meaningless since judges have a long time to become used to their positions. True enough for the time being. But the Supreme Court is both the most and the least powerful body of government, able to overturn any executive order or statute but unable to enforce its rulings via any other means than persuasion. It gains legitimacy from our support. Barrett might endanger the conservative movement, which has only recently started, if she refuses to engage with the program.
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