Counting All of Justice Barrett’s Votes

O f President Trump’s three Supreme Court appointees, Justice Amy Coney Barrett has been subject to the most severe criticism. She’s earned it. Most of the defenses of Barrett, including in these pages, highlight the important conservative majority opinions she has joined. It’s true that she joins Justices Thomas and Alito, the Court’s standard-bearer conservatives, in nearly 90 percent of the merits cases. But that voting record is not something that should have ever been in doubt. President Trump knew better than to appoint another moderate like Justice Sandra Day O’Connor, let alone a liberal like Justice David Souter.

Barrett is unquestionably a judicial conservative. Still, a complete assessment of Justice Barrett requires looking beyond the merits docket. On the Supreme Court’s interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues. Conservatives should not blind ourselves to where Barrett has consistently fallen short. All you have to do is count all her votes.

The Interim Docket

In recent years, there has been an attempt to scandalize what is a necessary process in every appellate court: deciding urgent cases on an expedited basis. The Supreme Court does not have a nefarious “shadow docket” where cases are decided in the darkness. A more accurate term is the “emergency docket,” in which the parties ask the Court to decide vital cases as soon as possible. Perhaps the better term is the “interim docket,” as the Supreme Court is just issuing an interim ruling until the lower courts can fully decide the case. Whatever you call it, this docket is a vital metric to measure how a justice performs. And on this front, Justice Barrett pales in comparison with her conservative colleagues. Since Justice Barrett joined the bench in 2020, there have been nearly two dozen important cases on the interim docket where she did not vote with Justices Thomas, Alito, and usually Justice Gorsuch.

During the pandemic, Justice Barrett’s first concurrence upheld California’s ban on singing in church. Barrett was silent about challenges to state vaccine mandates brought by religious health-care workers. Barrett reversed a lower court ruling in favor of Navy Seals who objected to the military’s vaccine mandate. Barrett stood by while the Biden administration pressured social media companies to deplatform conservatives. (Barrett would ultimately write the majority opinion finding that none of the conservatives actually suffered any injuries.) Barrett did not join the conservatives in support of a Florida law that prohibited restaurants from showing “adult live performances” to children. Barrett voted to block a Texas regulation of social media companies. Barrett refused to block a Biden-administration policy that required emergency room doctors to perform abortions. In this last case, Justice Alito wrote that his colleagues “simply lost the will to decide the easy but emotional and highly politicized question.” Alito added that Barrett, among others, did “not want to tackle this case” and instead “ducked.”

There’s more. Barrett ruled that Texas could not install razor wire in the Rio Grande River to stem an influx of migrants. Barrett did not join the conservatives who reversed the Biden administration’s decision to cut Oklahoma’s Title X funding after it banned abortion. Barrett ruled that the Trump administration must pay nearly $2 billion in foreign aid. Barrett ruled that the Trump administration had to pay certain DEI grants. Barrett denied relief to South Carolina, which sought to limit bathroom use in schools based on biological sex. Barrett would not have allowed President Trump to deploy the National Guard to Illinois to assist in immigration enforcement. Justice Barrett greenlighted the shipment of mifepristone to states that ban abortion.

There are more such interim docket cases, none of which show up in a simple count of how often Barrett agrees with Justices Thomas and Alito on the merits docket. All of these interim docket votes cannot be explained away as outliers, or as the careful considerations of a proceduralist-minded judge. Rather, there is a clear pattern of Barrett’s hesitancy in granting interim relief on contentious matters. When Justices Thomas and Alito see lower courts slapping the rule of law, Justice Barrett turns the other cheek.

In fairness, Justice Kavanaugh joined Justice Barrett on many of these earlier interim docket cases, but more recently, he has voted more consistently alongside Justices Thomas and Alito. In my view, the so-called 3-3-3 Court is largely a thing of the past. Moreover, often when Justice Kavanaugh rules opposite of the conservatives, he explains why. Even where I disagree, I know where Kavanaugh is coming from. Justice Barrett once told critics to read the opinion, but she tends to write very little on the interim docket.

The Certiorari Docket

Justice Barrett’s performance can also be measured based on what cases she lets onto the merits docket. On the Supreme Court, it takes four votes to review a lower court decision. In the lingo, the Court would grant a petition for a writ of certiorari. A generation ago, the Supreme Court would hear more than 150 cases per year. But over time, that number has dropped to about 60 cases per year. Even as the conservative justices resolve landmark cases involving abortion, the Second Amendment, religious liberty, and more, many worthwhile disputes are simply turned away. The upshot of a denial of certiorari is that liberal lower courts can continue to impose unconstitutional rules on millions of Americans. To be sure, many petitions are not suitable for Supreme Court review. They are not, in the parlance, “cert-worthy.” But it is common for one or more justice to dissent from the denial of review. Alas, a justice’s vote to deny review is not publicized, so Court watchers must speculate about unstated votes. But it often isn’t too hard to figure out who voted to deny cert.

Since Barrett joined the Court in 2020, there have been about a dozen contentious cases where Justices Thomas and Alito, plus either Justice Gorsuch or Kavanaugh, voted to review a case, and where it is fairly clear that Justice Barrett voted no. Given the Court’s shrinking docket, each of these cases would have yielded a landmark decision. Justice Barrett likely turned away religious liberty petitions involving a Christian florist who refused to make arrangements for same-sex weddings, a Catholic diocese that refused to fund abortions for its employees, and an Indian group that tried to stop the destruction of its sacred site. Justice Barrett punted on pandemic-era cases involving a challenge to a state vaccine mandate and the case of a religious health-care worker who was fired for refusing the Covid-19 vaccine.

Justice Barrett did not signal a vote to grant petitions from a Catholic hospital that was forced to perform a hysterectomy on a transgender patient, a Christian counselor who was barred from counseling children to be comfortable in their own bodies, and parents who challenged a school’s policy to encourage students to transition without parental knowledge. In this last case, Justice Alito warned that “some federal courts are succumbing to the temptation” to “avoid[] some particularly contentious constitutional questions.” This message seems to be tailored to Barrett as well.

Even where Justice Barrett votes with the conservatives on the merits docket, there is still hesitancy. The New York Times revealed that Justice Barrett voiced concerns about granting review in the Dobbs case that could have overruled Roe v. Wade. While Barrett initially supported review, she pulled back her support. Fortunately, Justice Kavanaugh provided the necessary fourth vote for certiorari. If it were up to Justice Barrett, Roe v. Wade might still be the law of the land. There are costs to procedural delays. Justice delayed may become justice denied. We should never forget that the current conservative majority is fleeting, as the assassination attempt of Justice Kavanaugh demonstrated. There is no guarantee that an issue turned away will return to the Court with a five-member majority.

Room for Improvement

I entirely agree that many of the personal attacks against Justice Barrett and her family are beyond the pale. Indeed, I suspect much of the vitriol comes from people who never read beyond the headlines. Such is politics. But conservatives, especially those who supported Barrett’s nomination in 2020, have been far too defensive of Justice Barrett. The failure to engage with valid criticisms does not augur well for selecting the next Supreme Court justice. We need to read all of a judge’s record and cannot simply back our favorite candidate based on vibes and groupthink.

Whenever Justice Barrett declines to grant review in a case, or refuses to grant emergency relief, she is not simply exercising restraint or adhering to an apolitical proceduralism. She is telling Justices Thomas and Alito that they are wrong, and that she knows better. If Barrett is being principled, then Justices Thomas and Alito are not. They can’t both be right. I would be willing to chalk up occasional splits to reasonable disagreements about the law, but these dissents from the Court’s stalwarts happen far too frequently. The pattern and practice are consistent. Regardless of the rationale, the result is clear: Progressive lower court judges continue to impose their rulings on millions of Americans with no further chance of relief.

Fortunately, as Justice Barrett has just crossed the five-year threshold on the Court, there is still much room left for improvement on the interim and certiorari docket. Critics and supporters alike can just read all her opinions and count all her votes.