The Barrett ‘Betrayal’ Myth

Despite its many groundbreaking victories for originalism and textualism, the Supreme Court’s term closed with a barrage of vitriol from some conservatives aimed at Justice Amy Coney Barrett. The biggest trigger was the Court’s birthright citizenship decision, Trump v. Barbara, which came on the Court’s last day. Social media lit up with barbs declaring that Barrett had veered Left. The College Republicans from her alma mater and former employer, Notre Dame, called her an “absolute disgrace” and Rep. Nancy Mace declared that she “should be removed from the Bench.” Missing from the pile-on was any contextual analysis of Barrett’s full track record on the Court.

Frustration over Barbara is understandable. Conservatives (including me) care about immigration enforcement and hoped for a different outcome. But the justices do not cast votes on outcomes, and it’s a mistake to judge them solely by the question, “Did my side win or lose?” Fidelity to the Constitution is what matters. We should credit the originalist majority for its good-faith effort to apply originalism and textualism in difficult cases. No approach does better at reading the law as it is rather than as judges wish it to be.

The Court regularly wrestles with hard methodological questions, and even principled originalists sometimes err. Take Justice Antonin Scalia, who more than anyone else steered the Court — and legal scholarship generally — toward originalism. He wrote the Court’s decision in Employment Division v. Smith (1990), gutting free-exercise protections so badly that Congress had to pass the Religious Freedom Restoration Act to fix it. He spent years championing Chevron deference to agency interpretations of ambiguous laws. And in Gonzales v. Raich (2005), he provided a concurring vote for a sweeping reading of the Commerce Clause that let the federal government prohibit local cultivation of marijuana — an affront to federalism.

Justice Clarence Thomas, a favorite of mine and of many other originalists, dissented in Raich. But weeks later, he wrote the Court’s opinion in National Cable & Telecommunications Assn. v. Brand X Internet Services, which expanded Chevron deference over Scalia’s dissent. (In 2020, Thomas changed his position.) Justice Samuel Alito, another towering originalist, balked at perhaps the best opportunity over the past decade to revive the nondelegation doctrine, the separation-of-powers principle under which Congress is prevented from transferring its legislative power to another branch. Those are long-serving judicial superstars.

Of course, many Republican appointees drifted leftward over time, embracing the bald judicial activism of “living Constitution” liberals: Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter. Justice Barrett is not one of them. In fact, she helped clean up the jurisprudential mess those justices had made — most notably voting to overturn Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health Organization and to overturn racial preferences in education in SFFA v. Harvard. She also voted to end Chevron deference in Loper Bright Enterprises v. Raimondo. 

Apart from those jurisprudential earthquakes, she has been a reliable originalist vote in hard-fought First Amendment cases, on both speech and free exercise — supporting a web designer’s ability to refuse websites that violate her religious beliefs, protecting parents’ right to opt out of sexual material in public schools, upholding states’ ability to require age verification for pornography, safeguarding political speech, and striking down Colorado’s “conversion therapy” ban. The same holds for Second Amendment protections of the individual right to bear arms in cases from New York State Rifle & Pistol Assn. v. Bruen in 2022 to Wolford v. Lopez this term.

Barrett helped the Court reject activist contortions of the Equal Protection Clause — efforts to stop states from prohibiting transitioning procedures for minors and limiting women’s sports to biological females. She supported extending the colorblind principle to racial gerrymandering cases.

A strong protector of the separation of powers, Barrett defended the president’s ability to fire heads of “independent” commissions — overturning a 91-year-old precedent that had fueled the modern unaccountable administrative state — and dissented with other conservatives when the majority declined to apply the same principle to the Federal Reserve. She has also invoked the major questions doctrine to check executive overreach involving draconian carbon mandates and student loan forgiveness. Yet all these strong rulings risk being overshadowed by the online fury over Barbara, a challenging case in which originalists differed over the text and history of the Citizenship Clause. Barrett’s critics selectively ignore this term’s other textualist victories, several of which she joined on the side of immigration enforcement, including the president’s termination of Temporary Protected Status.

The major originalist and textualist victories in the six years since Barrett joined the Court seemed completely out of reach a generation ago. That is not a record of a justice, let alone a majority of the Court, slouching leftward. This is one of the greatest Courts in American history, and Justice Barrett is an instrumental part of it.

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Carrie Severino is the President of the Judicial Crisis Network.