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Let’s just get this out of the way: you do not, under any circumstances, gotta hand it to Justice Amy Coney Barrett.
Barrett, after all, was installed on the Supreme Court for the sole purpose of helping overturn Roe v. Wade — a smug little move that ensured a female justice joined the men in eradicating bodily autonomy for women. Lately, however, she’s broken with the MAGA majority on some things that are making her once-fervent backers furious.
Is Amy Coney Barrett our new David Souter, a Republican appointee who turned out to be a progressive jurist who routinely upheld liberal values? Or perhaps our new Anthony Kennedy, often the swing vote in 5-4 disputes, a theoretical median justice who could be persuaded to side with liberals if he got the spotlight? Or maybe she’s more like Chief Justice John Roberts, occasionally flipping sides to burnish her legacy?
Barrett is not really any of those. She likely aspires to be like her mentor, the late Justice Antonin Scalia, for whom she clerked. Scalia was a reliably hard-right conservative who was very occasionally a champion for good things like robust Fourth Amendment protections. Scalia sided with the liberal justices on three key cases that restricted the ability of police to perform warrantless searches, writing the majority opinion in each. When Barrett was on the Seventh Circuit Court of Appeals, she sided with law enforcement nearly nine times out of ten, but she has joined the Court’s liberals on some Fourth Amendment cases.
What Barrett is not, most definitely, is a justice in the behavioral mode of Justices Samuel Alito and Clarence Thomas. She hasn’t adopted their trollish, pugnacious vibe and doesn’t quite seem to be taking her cues from the pages of the Daily Caller or the Federalist. Nor has she adopted Scalia’s habit of caustic mockery, but that might only be the case because while Scalia was lauded for that, women simply aren’t as free to behave that way. Instead, Barrett joined Justice Sonia Sotomayor for a public appearance where they insisted the Court is just chock full of collegial camaraderie.
“She checked identity politics boxes”
Right now, conservatives are mad because Barrett sided with Roberts and the Court’s liberals in the 5-4 decision requiring the administration to pay close to $2 billion owed to USAID contractors for work they had already completed.
Terminally online bottom feeders like Jack Posobiec, Laura Loomer, and Mike Cernovich smeared her as a “DEI hire.” Loomer even posted a picture of Barrett’s family, which includes two adopted Black children, just to make sure that everyone understood the DEI slam was not just misogynistic but also racist. Josh Blackman, a conservative law professor and commentator who enthusiastically backed Barrett’s nomination, now whines that she “had no business being appointed to the Supreme Court” and also that maybe she wasn’t even qualified for her seat on the Seventh Circuit.
Notably, Roberts doesn’t face as much ire as Barrett despite also occasionally siding with the liberals for rulings that infuriate conservatives, including in the USAID case. There are probably two reasons for this. First, Roberts is a white straight man, so he can never be tarred with the DEI brush or be told that he only got the job because he “checked identity politics boxes,” as Cernovich said about Barrett. As important, though, is that Roberts is not a Trump appointee, and therefore is not expected to show the same level of personal mob-style fealty required of Barrett.
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Hence Blackman’s complaint that not only is Barrett not intellectually qualified to be on the Court but that he is “fairly confident she does not like President Trump.” The framing here is that Barrett owes her position to Trump and therefore owes him love, devotion, and voting in lockstep in return. It’s part of the right’s profound disregard for the separation of powers. They have no interest in a judiciary that is independent from Trump’s wishes.
It isn’t just the USAID case that has MAGA types calling for Barrett’s head. Internet randos were incandescent with rage that she didn’t vote to block Trump’s sentencing in his New York hush money criminal case earlier this year. In 2024, when she joined the liberals in dissenting on a voting rights case, MAGA luminary Cat Turd called her “Amy Commie Barrett.”
While the more low-rent MAGA commentators like Posobiec and Cernovich might be furious with Barrett, she hasn’t lost the support of the person who really matters. No, not Donald Trump, though he vaguely defended her, calling her a “very good woman” after the USAID decision. Leonard Leo, chair of the Federalist Society and the person who arguably has been the most instrumental in ensuring the Court’s lurch to the right, still thinks Barrett is doing swell, saying she is “in the vanguard of conservative jurisprudence on abortion, racial preferences, the administrative state, religious freedom, Trump immunity, guns and the Second Amendment” even after her vote on the USAID case. Ed Whelan, another former Scalia clerk best known for his unceasing devotion to smearing Christine Blasey Ford during the Kavanaugh confirmation hearings, is also still a big fan.
One thing right-wingers are correct about is that it is difficult to parse Barrett’s overall judicial philosophy. She definitely fancies herself as an originalist, the conservative legal philosophy that says the Constitution must be frozen in amber, interpreted only as it was at the time of its ratification. But she doesn’t love the Clarence Thomas approach to originalism, which cherry-picks the historical record to get a preferred result.
When it comes to reproductive health or LGBTQ cases, Barrett is a true blue hard-right conservative, refusing ever to recognize that denying people bodily autonomy is inherently bad. In the oral argument in Dobbs v. Jackson, which overturned Roe, she blithely mused that since all states now have safe haven laws where people can surrender an infant without being prosecuted, was abortion really necessary? In 2023, she joined the rightwing majority in holding that a Christian website designer could discriminate against same-sex couples and refuse to work with them. She’s so far afield on trans issues that in a recent oral argument she seemed completely surprised that there is a long and vicious history of discrimination against trans people.
In contrast to voting in lockstep on those issues, Barrett has broken with the MAGA majority on two recent Environmental Protection Agency cases. She wrote the dissenting opinions, joined by the Court’s three liberal justices, in Ohio v. EPA and San Francisco v. EPA. But dissenting cost Barrett nothing. In both cases, there were already five votes from the Court’s other right-wingers, ensuring that the EPA’s ability to regulate smog and water quality was gutted even without her help.
That’s also the case with her dissent in Fischer v. United States. There, the majority narrowed the scope of the federal obstruction law used to charge many of the January 6 rioters. In dissenting, Barrett said that the rioters were undoubtedly blocking an official proceeding by, well, rioting. The next day, however, she turned around and joined the right-wingers in giving Trump sweeping presidential immunity for actions that incited that very riot, albeit favoring a slightly narrower approach.
As much as Trump supporters are currently howling about Barrett being a secret Democrat or whatever, the idea that Barrett is a reliable vote for liberals is just not accurate. In the 2023 term, she joined Alito and Thomas, the Court’s most conservative jurists, more than 80 percent of the time. She’s been a reliable conservative vote for ending abortion, ending affirmative action, and ending most regulations on guns.
All of this makes it difficult to guess whether Barrett will help serve as a bulwark against Trump’s worst excesses. She’s slightly more hawkish than her conservative colleagues on procedural issues, meaning she’s not always as ready to intervene to grant emergency relief without full litigation. However, just because she prefers that the Court take cases where a record has been developed at the lower court stage rather than ruling on them on the shadow docket doesn’t mean she won’t ultimately side with conservatives. In Kennedy v. Bremerton, the plaintiff was initially handed a procedural loss, but ultimately Barrett joined the right-wingers, upending the First Amendment by basically legalizing coerced Christian prayers in public schools.
A very slender reed of hope
Barrett could emerge as the median justice, the one representing the center of the Court’s ideology, a position that Justice Brett Kavanaugh has recently occupied. But that’s actually part of the problem.
The Court has lurched so far rightward that Barrett’s views are sometimes moderate in comparison to her more hardline colleagues, but that doesn’t mean she’s liberal or that she will consistently work to stop Trump’s worst excesses. It likely does mean, though, that she represents the best possibility for liberal outcomes at the Court and that litigants will need to court her as a possible swing vote the way they once did Anthony Kennedy.
Unfortunately, Kennedy was a swing vote on a Court otherwise split ideologically down the middle, meaning each side needed him for that critical fifth vote. Conservatives can lose Barrett and still have five votes. Barrett knows this, which makes her principled dissents ring a bit hollow.
Barrett can afford to make herself look moderate if doing so doesn’t result in Trump’s desires being thwarted. It’s not incorrect to say she might be the best hope for liberals, but that hope is a pretty slender reed.
That’s it for today
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