Justice Barrett follows the law because she is a conservative. The liberty of every American is safer for her fidelity.
Justice Barrett follows the law because she is a conservative. The liberty of every American is safer for her fidelity.
E arlier this year, Elon Musk asked why Democrats could always count on their appointed Supreme Court justices to rule for their side while Republicans could not. There are two answers to that question. First, for decades, conservatives have watched with frustration as several Republican-appointed justices have abandoned conservative legal principles after their confirmation to the Court, originating the old joke that Republicans need all nine appointments to the Supreme Court to have a 5–4 majority. Second, because conservative justices rule on principle, not a desired political outcome, they will sometimes come to decisions that are inconsistent with conservative policy preferences.
President Trump’s appointments, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, well respected by Federalist Society members, fall into the second category, having almost always applied conservative legal principles in their decisions. Yet, some MAGA influencers have taken to criticizing Justice Barrett because her rulings do not always align with the president’s desired outcome.
That a justice reaches a decision that is inconsistent, as a matter of policy, with that of conservatives does not imply an abandonment of conservative legal principles. In Gonzales v. Raich, for example, the question was whether, under the commerce clause, which grants Congress the authority to regulate interstate trade, the federal government could prohibit the cultivation of marijuana for personal use in a private backyard. Justice Antonin Scalia wrote the majority opinion upholding the prohibition, applying existing Supreme Court precedent. Justice Clarence Thomas, on the other hand, dissented, finding that the power to regulate interstate trade does not include the power to regulate behavior that takes place solely in a private backyard. While the principles that led each justice to his different conclusions can be criticized, it would be churlish to suggest that either of these conservative stalwarts had “gone woke.”
Conservatives, by definition, have a fundamental commitment to the dispassionate and unbiased judicial application of consistent legal principles. Conservatives know that the Constitution and federal statutes have objective meanings to which those in power, judges and presidents alike, are legally and morally subject.
For decades, conservatives have rightly criticized the left’s “living constitutionalism,” the view that those in power should “update” the Constitution to deal with modern problems. This reimagining of the Constitution comes not through the constitutionally prescribed process, which is intentionally rigorous, but through judicial decisions, legislation, or executive action that reach a desired outcome inconsistent with the law. Through such usurpations, living constitutionalists tear away at the Constitution’s limits on government power that were designed to protect the liberty of the people from government abuse. When assessing the quality of judges, the questions should be, first, whether they are actually ruling on principle and, if so, whether their principles are correct.
Justice Barrett’s populist critics implicitly argue for a “conservative” form of living constitutionalism. Yet the Constitution is inherently conservative, which is why Justice Barrett has been part of the conservative majority in decisions overturning Roe v. Wade, diminishing the unconstitutional powers of the unelected federal bureaucracy, striking down racially discriminatory affirmative action policies in public universities, striking down religious discrimination in school choice policies, upholding presidential immunity from certain prosecutions, and ensuring that President Trump was not removed from ballots during the 2024 election.
In an April 9 memorandum, President Trump directed administrative agencies to find and repeal regulations inconsistent with ten recent Supreme Court cases. Justice Barrett was on the Court for nine of those cases and ruled with the conservative majority in eight of them, diverging from her conservative colleagues only on a question of timing, not on the merits of the case itself. Thus, even if judged purely on outcome, Justice Barrett has been consistently conservative.
According to former Scalia clerk Ed Whelan, the justice liked to quote Thomas More as portrayed in A Man for All Seasons: “And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat. . . . Yes, I’d give the Devil the benefit of law, for my own safety’s sake.” Whelan’s fellow former Scalia clerk, Amy Coney Barrett, whom the president has described as a “very good woman” who is “very smart,” does her best to follow the law, and in doing so has repeatedly helped deliver legal wins for conservatives. The criticisms levied by her detractors demonstrate that they are populists, unmoored from conservatism.
Justice Barrett follows the law because she is a conservative. The liberty of every American is safer for her fidelity.