Amy Coney Barrett (Part 2)--"Non-Hack"

Source: Elizabeth Frantz/NY Times

“The Supreme Court’s second-newest justice is proving herself to be a non-hack —to the increasing consternation of MAGA.”

That's Matt Ford, Associate Editor of the politically liberal The New Republic magazine.

But it's not just liberals who have nice things to say about Justice Amy Coney Barrett. Edward Whelan, former law clerk to Justice Antonin Scalia, holder of the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, and one of the nation's foremost conservative legal commentators had this to say: "She’s a careful, precise thinker, and she’s been thrust into this very volatile environment.” 

Jodi Kantor, who has reported behind-the-scenes stories about the Supreme Court for the New York Times, compared Barrett favorably to others on the Court: "Justice Barrett has favored a more deliberate approach than some of her colleagues."

These views of Amy Coney Barrett are far more common among the less-partisan observers of the Court than those of the uber-MAGA crowd, some of which were included in the previous post. (See Amy Coney Barrett (Part 1)--"Rattled Law Professor.")

Again, the facts. Here is my graph from the previous post that shows how Justice Barrett has been voting:

(click to enlarge for a better view) 

In the 29 ideologically laden cases last term--i.e., those clearly identifiable as "politically conservative" versus "politically liberal" among the 64 full-appeals decided--Barrett was unmistakably on the conservative side of the Court. No doubt about that when her 62% conservative voting is contrasted with the 7% and 10% conservative records of Justices Jackson and Sotomayor, respectively. Of course, her record is also a far cry from the 93% conservative voting of both Justices Thomas and Alito. So yes, it's clear to see why she would be a disappointment to the partisans who expected her to be or hoped her to be far more ideologically disposed.

But worse than that for the most die-hard Trump supporters is her record in cases directly involving Trump himself or his policies. Let's take a look at Barrett's record, as well as those of her colleagues, in those cases.

There were 22 such cases. These included 16 that were decided on an emergency basis--i.e., the so-called "shadow docket," where there were no arguments held and no full briefing. Just a petition for relief by a party unhappy with a decision by a lower court, and a vote in conference by the Justices to grant or deny the request. 

In fact, most of the cases directly involving Trump or his policies were decided that way last term. And most of the time, the Court's majority gave absolutely no reason for its decision. As the headline from one of veteran Court reporter Adam Liptak's column summarized the situation: “Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why.” (NY Times, July 16, 2025.) 

Here's what the voting looked like in all those 22 "Trump Cases"--full appeals and "emergency" decisions: 

(click to enlarge for a better view) 

As was clear from the previous graph showing Justice Barrett's 62% politically conservative voting in the full appeals, her 68% voting in favor of Trump and his policies, as depicted above, is hardly the record of a political liberal. Certainly not when contrasted with the 0% and 5% pro-Trump voting of Justices Jackson and Sotomayor.

But neither is Barrett's record even close to the 100%--yes, 100%--pro-Trump voting of both Justices Thomas and Alito. No, Justice Barrett's voting in the cases directly involving Trump or his policies--full appeals plus emergency decisions--is not a record of a blind partisan. Not a record of a blind Trump loyalist. Hence, the ire of the uber-Trumpists and the respect of just about everyone else. Even cautious optimism among some liberals.

By way of illustration, Barrett's record this year included voting in a 5-4 majority to order the Trump administration to unfreeze nearly $2 billion in foreign-aid reimbursements, in another 5-4 majority refusing to recognize Trump's claimed presidential-elect immunity, in a 6-3 majority to preclude presidential hiring and firing of certain "lesser" executive officials, and in dissent with the three liberal Justices to uphold broad authority of the Environmental Protection agency. 

Lest it be thought that Justice Barrett's voting last term could have been an aberration. Perhaps it was a particular mix of cases that resulted in her voting "pro-Trump" much less than other Republican appointees on the Court. It turns out that Barrett's record in cases involving Trump or his policies has consistently been much less pro-Trump than some of her colleagues.

Indeed, eminent Supreme Court scholar Lee Epstein, who probably tracks the voting records of the Justices more closely than anyone else, has compiled all the votes on former and current President Trump since Justice Barrett was appointed to the Court--by Trump--in 2020. Here's what Lee Epstein and her colleagues found: 

(click to enlarge for a better view) 

According to the Epstein & Colleagues calculations, Barrett has voted pro-Trump less than any other Republican appointee. Her 59% record since she joined the Court is not only just above 50-50 pro-Trump, but it is a far cry from the 94% for Justice Alito and the 88% for Justices Gorsuch and Thomas.

To be sure, her voting is also a far cry from the heavily anti-Trump records of Justices Sotomayor, Jackson, and Kagan. But still, Barrett's record is hardly one to be applauded by the MAGA crowd or even the more moderate Trump partisans. 

A "rattled law professor," "Amy commie Barrett," "evil," and "a disgusting fraud." Or perhaps a "non-hack," "careful, precise thinker," one who "favor[s] a more deliberate approach than some of her colleagues."

Well, the facts of Justice Barrett's voting record demonstrate that she is certainly a political conservative. She wouldn't be confused with a liberal--let alone a communist. Except by the most ideologically or politically fanatical out there.

But neither does Justice Barrett's record confirm what many political liberals feared she would be. Nor does it confirm the view adhered to by many political liberals that she remains hopelessly tied to the right wing of the Court. Conservative, yes. But also a Justice who, like Justices Sandra Day O'Connor and Anthony Kennedy before her--or even John Marshall Harlan II before them--has a strong, confident, independent streak. She has shown herself to be unafraid and unhesitant to break from her usual or expected ideological allies on some of the most politically-charged cases before the Court.

Amy Coney Barrett (Part 1)--"Rattled Law Professor"

Source: Allison Robbert/NY Times

The complete line: "She’s a rattled law professor with her head up her a**."

By the way, that's from a gentleman named Mike Davis, speaking on Steve Bannon's podcast. This Davis fellow actually served as the head counsel for nominations for the Republican Chair of the U.S. Senate Judiciary Committee. Shortly before that, he had urged that Neal Gorsuch be appointed to the Supreme Court, and then he was hired by Gorsuch to be his law clerk.

Davis & Gorsuch, hmm!

[In all fairness to Justice Gorsuch, Davis only lasted, for whatever reason, a few months in Gorsuch's chambers.]

Davis is hardly the only supposed "conservative"--i.e., here, referring to a Trump die hard--who's unhappy with Justice Barrett.

There's the oh-so dignified "Catturd"--his trademark--Phillip Buchanan, who posted this: "Amy Commie Barrett—she’s been an ungrateful, backstabbing POS since day one."  So she's a backstabber, an ingrate, and....a communist? Well, she's each of those because she doesn't vote in support of everything and anything that Trump and his administration try to do. Oh, also, she's "an Absolute disgusting fraud."

Then there's the social-media "influencer," Michael Cernovich, famous among other reasons for calling date rape "a liberal fiction." He summarised his thoughtful appraisal of Justice Barrett this way: "She is evil." So more than rattled or ungrateful or even disgusting. She's actually evil!

Mark Levin, the FOX News host, was a bit softer in his assessment: "The power has gone to her head."

Then there's Trump confidant and travel companion, Laura Loomer, who was among those who figured that their disappointment was to be expected: "Amy Coney Barrett was a DEI [diversity, equity, and inclusion] appointee." 

And according to numerous sources, Trump himself has been complaining about Barrett--as well as his other appointees for not marching in lockstep. In fact, he's expressed his fury about Leonard Leo, the leader of the Federalist Society. Trump apparently blames Leo for his advice on judicial appointees. Trump has ranted that Leo is "a real sleazebag...who in his own way probably hates America."

But back to Barrett.

Beyond all this unhinged commentary--along with the vicious and vile outpourings of agreement by the commentators' fans--is Barrett's record. Here is how she, as well as her colleagues, have been voting:

 (click to enlarge for a better view) 

This graph represents the Justices' voting and the Court's decisions in all 29 "conservative" versus "liberal" cases last term. That is, the 29 cases which--after examining all 64 full appeals decided in the Court's most recent term--could be identified as having an issue with a clear politically "conservative" versus politically "liberal" side.*

 *[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021).

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.]   

As the graph shows, Justice Barrett can hardly be viewed as a liberal. Compare her voting record to that of the two unquestionably liberal Justices, Jackson and Sotomayor. They supported the conservative position in only 7% and 10% of these cases, repectively. Barrett did so much more regularly and, indeed, more than half of the time; 62% in these close, divided cases. 

To be sure, Barrett's voting record is a far cry from that of the staunchly conservative Justices Thomas and Alito--both at 93% conservative. Apparently, that's the kind of voting her right-wing critics wanted and what many of them, including Trump, were expecting. 

Beyond that, what is perhaps the most telling aspect of Justice Barrett's record, at least for the fury within the Trump camp about her, is her voting in those cases specifically involving Trump, or involving policies especially advanced by him and his administration. Think immigration, firings without cause, environmental regulations, witholding funds from states that don't embrace his policies, etc. 

In the next post, we'll focus on Barrett's and her colleagues' voting in those cases. 

[For those of you experiencing deja vu--Yes, Yogi, all over again--I have written about Justice Barrett previously, and about aspects of her voting record at that point. See Part1: Amy Coney Barrett; Part 2; and Part 3.]

Splinters in the 6-3 Supreme Court (Part 2: Amy Coney Barrett cont'd)

Justice Barrett with liberal Justices Sotomayor, Kagan, and Jackson.
Credit: Supreme Court Collection

On January 9, shortly after this series began (see Part 1), the Supreme Court rejected then-President-Elect Donald Trump's request to halt the New York State criminal proceedings against him. Specifically, he sought to have the Court stay the sentencing proceedings incident to his multiple state criminal convictions. In a 5-4 decision, the Court declined to do so.

(click to enlarge for a better view)

As is customary, the Court's order was unsigned. But Justices Thomas, Alito, Gorsuch, and Kavanaugh did go on record that they disagreed and would have granted Trump's request.

Most notably, perhaps, Justice Amy Coney Barrett, who, like Gorsuch and Kavanaugh, was appointed by Trump, joined Chief Justice Roberts and the three liberal Justices--Sotomayor, Kagan, and Jackson--to deny Trump's request. She is increasingly showing signs of independence and distance from the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Her vote in this case is another illustration of what appears to be her emergence as a moderating voice within the 6 - 3 conservative Republican majority. 

Here are some other recent examples:

Trump v. U.S. is, perhaps, the most publicly debated decision of the last term. The 6-3 majority, speaking through Chief Justice Roberts, ruled that presidents--here, Donald Trump--are absolutely immune from criminal prosecution for any acts in the course of exercising core presidential functions. They are also presumptively immune regarding other presidential functions.

Justice Barrett, while labeling her separate opinion a concurring one, actually dissented in major part:

I agree with the dissent that the Constitution does not justify such an expansive view.... [For example,] a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.

Barrett also took direct aim at the majority's rule prohibiting any mention of the protected presidential function related to the president's criminal activity. That made little sense, according to Barrett. It effectively precluded prosecution, not only for the exercise of a presidential function, but for the clearly criminal conduct itself:

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution...excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability. 

[I cannot resist adding that several Justices, who insist that they adhere to the text of the Constitution and do not make policy, nevertheless embraced presidential immunity, which is nowhere mentioned in the Constitution, and they did so purely for policy reasons.Which is not to say anything about the merits of the policy. Only that it is policy, and not constitutional text.]

Trump v. Anderson, although not as heatedly debated as the immunity decision, is no less controversial among constitutional and judicial scholars. The seemingly plain language of the 14th Amendment's section 3 declares that an insurrectionist is simply disqualified from holding any official government office: No person shall...hold any office...under the United States, or under any State, who...shall have engaged in insurrection or rebellion.

Despite that language of automatic disqualification, the Court, in a per curiam opinion, unanimously rendered a practical decision that "States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

The Court was divided 5-4, however, on an equally critical matter. If a state cannot enforce the disqualification under the 14th Amendment and keep an insurrectionist off the state's ballot, then who can? The 14th Amendment says nothing about that. Again, it simply declares that an insurrectionist is ineligible to hold office, without any conditions. But the bare majority of five held that the "responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress." 

Among the remaining four Justices, three of them--Sotomayor, Kagan, and Jackson--in a joint opinion, took issue with the majority for deciding a question unnecessary to the case and deciding it wrongly:

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation...In doing so, the majority shuts the door on other potential means of federal enforcement.... It [for example,] forecloses judicial enforcement of that provision....[N]othing in Section 3’s text supports the majority’s view. 

Justice Barrett--like the three liberal Justices, but in a very brief, restrained separate opinion--said that the majority should not have specified a single, lone means of enforcing the insurrection disqualification of the 14th Amendment. Not only was that unnecessary, but at a particularly volatile time, it generated intense disagreement within the Court--which she also viewed as unfortunate. As she put it, this case,

does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. 

In another case related to the January 6, 2020 rioters at the Capitol, Fisher v. U.S., the Court ruled that the phrase "obstruction of an official proceeding," as used in the Sarbanes-Oxley Act of 2002, was intended to apply only to impeding official access to records, documents, and similar evidentiary objects.

Justice Barrett--writing for herself and liberal Justices Sotomayor and Kagan--disagreed with the other five Republican appointees (who were joined by Justice Jackson).

Barrett minced no words. In her view, the statute's application was "straightforward," and the majority was stretching the limits of the judicial role by limiting the very terms the legislature chose. The actions of the January 6 "mob" clearly fit within the scope of the statute:

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. 

The Court...does textual backflips to find some way— any way—to narrow the reach of [the statutory language].

In other cases, unrelated to the conduct of Trump or the January 6 "rioters," Barrett also broke with her more natural conservative Republican allies on the Court. A brief glimpse at her positions in a sampling of these demonstrates an unmistakably independent, more moderate jurisprudence.

In Ohio v. Environmental Protection Agency, she dissented--joined by the three liberal Justices--from the majority's holding that the EPA's "Good Neighbor Rule" [i.e., protecting downwind states from upwind states' air pollution] was, in the words of Justice Gorsuch, "arbitrary" and "capricious." Barrett criticized the majority for underestimating the consequences of its decision to block the EPA rule: “leav[ing] large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”

In the Murthy case, Barrett wrote for a 6-member majority, above the dissent of the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Rejecting the lawsuit brought against Biden administration officials for communicating with social media companies, Barrett explained that the complaining parties failed to show any "substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.”

In the Chiaverini case, Barrett joined that same 6-Justice majority over that same 3-Justice dissent. She signed onto Justice Kagan's opinion that upheld the validity of a malicious-prosecution claim based on a legally meritless criminal charge, even if there was some justification--i.e., probable cause--for some other charge in the same criminal proceeding. 

In Moore v. Harper, Barrett again joined the six-judge majority over the dissent of Thomas, Alito, and Gorsuch. This time, she agreed with Chief Justice Roberts's opinion that the Constitution, although giving state legislatures the power to draw the lines for congressional districts, did not mean free a state legislature to violate state constitutional law or decisional rulings in doing so.

Finally--for this post at least--in Haaland v. Bracken, Barrett penned the majority opinion, over separate dissenting opinions of Justices Thomas and Alito. (Justice Gorsuch joined the majority to embrace, as he usually does, the position more favorable to Indian tribes.) The Court, in an opinion by Barrett, upheld the constitutionality of the Indian Child Welfare Act of 1978. Among other provisions, aimed at keeping Native American children with Native American families, the Act mandates a preference that Native American children, who are removed from their biological families, be placed with extended family members or other Native homes. 

Again, this is just a sampling of cases in which Justice Amy Coney Barrett sided with positions opposed by other conservative Republican appointees on the Court. Sometimes her positions differed from those adopted by all the other five Republican appointees. Sometimes she was at odds with only the three most politically conservative Justices--agreeing not only with the Court's three liberals (Sotomayor, Kagan, and Jackson), but also with the Court's other more moderate conservatives (Roberts and Kavanaugh). 

The point here is not whether Justice Barrett's positions are preferable when she opposes the more politically conservative positions of some of her colleagues. [Although--disclosure--I do personally prefer her positions.]

Or that her positions are more legally correct. [Unless one is ideologically blind, it must be acknowledged that there are strong legal arguments on both sides in these cases.]

Nor is the claim here that Barrett is turning liberal. No, she still joins the politically conservative Justices on most issues that divide the Court. [Again, unless one is ideologically blind, it's hard to be certain that she is less wise and fair when she's with the conservatives and more so when she opposes them.]

The only point here is that Justice Barrett is showing an independence--at least some significant sparks of it-- from her more politically natural allies on the Court. In this regard, she may be less of what political liberals feared the most about her. Indeed, she may be evolving--like Justice Sandra Day O'Connor did--to become a centrist on the Court who typically avoids the more ideological extremes-- of either side of the Court's spectrum.

[I, for one, do hope so.] 

Ketanji Brown Jackson

Instead of rewriting what I've already said quite a few times in interviews on TV, radio, and podcast about President Biden's Supreme Court nominee, I thought I'd simply provide links to a few of those interviews.

In the meantime, of course, our hearts, thoughts, and support

are with the people of Ukraine.

Judge Ketanji Brown Jackson

U.S. Court of Appeals for the D.C. Circuit

Supreme Court Nominee

Photo by H2rty via Wikimedia Commons

Ketanji Brown Jackson primed to make Supreme Court history

Spectrum News 1, CAPITAL TONIGHT

Feb. 25, 2022

https://spectrumlocalnews.com/nys/capital-region/politics/2022/02/25/ketanji-brown-jackson-primed-to-make-supreme-court-history

Albany Law Prof. Vin Bonventre discusses nomination of Judge Ketanji Brown Jackson to Supreme Court

WAMC Northeast Public Radio, MIDDAY MAGAZINE

Feb. 27, 2022

https://www.wamc.org/news/2022-02-27/albany-law-prof-vin-bonventre-discusses-nomination-of-judge-ketanji-brown-jackson-to-supreme-court

Who is Ketanji Brown Jackson? Prof. Vin Bonventre Shares His Insights

Albany Law School, PODCAST

March 1, 2022

https://soundcloud.com/user-952955809-873766748/who-is-ketanji-brown-jackson-prof-vin-bonventre-shares-his-insights?utm_source=clipboard&utm_medium=text&utm_campaign=social_sharing