The single most consequential player in the Supreme Court’s current conservative revolution is also the least conspicuous. Justice Amy Coney Barrett powered the court’s hard-right turn by casting the fifth vote in several major decisions—most notably, Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade. Yet over the course of the most fractious term in modern history, she rarely bothered to explain herself. While Donald Trump’s other two justices spilled much ink defending their positions, Barrett remained reticent. By the end of the term, she had become an enigmatic figure whose jurisprudence grew more cryptic and confusing with each decision. Even as her court grew more aggressive, she seemed to recede from view.
This tactical retreat from the public eye hints at the headwinds that Barrett faced in her second year on the court. The justice was ill-prepared for many aspects of her job, and after a series of unforced errors, she has faded into the background whenever possible. As a result, the woman who entrenched the Republican Party’s control over the federal judiciary comes across more as a loyal backbencher than an independent thinker.
It may be tempting for progressives to assume that Barrett is cynically withdrawing into the intellectual shadows so she can inflict maximum damage with minimal backlash. But the better explanation may be that the justice is simply in over her head.
Part of the problem is that, of all the current justices, Barrett had the least amount of preparation and training for the unique requirements of the job. She spent most of her career as a professor at Notre Dame Law School, where her students chose her as distinguished professor of the year three times. Her academic work was often dry and technical, verging on esoteric, and she avoided committing herself to any controversial ideas. Donald Trump appointed her to a federal appeals court in 2017, where she served for less than three years before joining the Supreme Court. Her opinions seemed calculated to improve her chances for a SCOTUS seat.
No other member of today’s court had so little experience in public service before their elevation. Justices Sonia Sotomayor, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson all served substantial terms on the lower courts. Chief Justice John Roberts and Justice Clarence Thomas served only brief stints on the lower courts, but unlike Barrett, they held prominent government posts before that. The closest comparison is Justice Elena Kagan, who had never been a judge before she joined SCOTUS. Kagan, however, worked in Bill Clinton’s administration for four years then served as Barack Obama’s solicitor general. She also spent nearly six years as dean of Harvard Law School, presiding over a snake pit of clashing egos—a perfect training program for the Supreme Court.
Justices are politicians, whether they like it or not. They wield an immense amount of power, guaranteeing intense scrutiny of their words and actions. And because the court’s authority rests on public perceptions of its legitimacy, that scrutiny matters a great deal. When they decline to explain their votes, they create the impression that they’re exercising raw power instead of principled legal judgment.
That’s especially true of Barrett, whose eleventh-hour confirmation to replace the liberal Ruth Bader Ginsburg destabilized the entire judiciary. Trump, abetted by Sen. Mitch McConnell, rushed her onto the bench in the midst of an election to lock in GOP control of the courts. She refused to answer questions at her hearings, proffering opaque platitudes to avoid derailing her confirmation. This behavior foreshadowed her style of judging: provide as few answers as possible to preserve maximal latitude.
Since then, Barrett has done little to dispel the fumes of partisanship and illegitimacy that poisoned her appointment. Her attempts at public relations have backfired. She inked a lucrative book deal for her memoirs before she had produced a scintilla of a public thought. In September, the justice declared that she and her colleagues were not “a bunch of partisan hacks” while standing next to McConnell at a center named after him. (She limited press access to the event.) In April, she urged Americans to “read the opinions” before concluding that the court’s work was “purely results-driven.”
There’s just one problem with that instruction: During her tenure, the court has radically altered the law through the shadow docket without issuing any opinions. It did so once again just two days after Barrett’s read-the-opinion speech by a 5–4 vote. She wordlessly joined the majority.
Barrett’s performance at oral arguments, too, has been befuddling. She tends to ask very specific questions about some obscure aspect of the case, as if to flaunt her intricate knowledge of the record or her nuanced thinking. Then she signs onto an un-nuanced, hard-line opinion that completely ignores her putative concerns. Often, at arguments, she presents herself as a reasonable moderate earnestly grappling with the issues at hand; in opinions, she is just another automatic vote for a reactionary result.
Barrett’s biggest blunder was probably her question, during arguments in Dobbs, about “safe haven laws,” which let parents relinquish newborns without penalty. She suggested that these laws obviate the need for abortion, as if nine months of unwanted pregnancy were no big deal. That tone-deaf remark, as well as a gaffe about the “Jewish-Palestinian conflict,” indicated that she is not ready for prime time.
When the decisions come down, Barrett is frequently missing in action. As the junior justice, she does not get assigned blockbuster opinions, but she is free to write concurrences and dissents. Gorsuch and Kavanaugh wasted no time making their mark on the court through concurring opinions explaining their votes. These separate writings aim to give a reasoned defense of the justices’ stance and to distinguish their intellectual projects from the conservative herd.
Barrett has chosen a different tack: silence. This term, she has joined a number of important 6–3 and 5–4 decisions that shifted the law rightward without a sentence of explanation. The justice wrote nothing in Dobbs to tell us why she overruled Roe. She wrote nothing in Oklahoma v. Castro-Huerta, a brutal 5–4 assault on tribal sovereignty. Nothing in West Virginia v. EPA hobbling climate regulations; or Kennedy v. Bremerton allowing Christian prayer in public schools; or Carson v. Makin forcing public funding of religious education; or Vega v. Tekoh undermining Miranda warnings; or the brutal habeas decisions that let states execute innocent people.
When Barrett does write a concurrence, it’s usually short and academic. Her opinion in the concealed carry case, for instance, ponders the precise historical period judges should look to when determining the original meaning of the Constitution. (As if the majority won’t start with its preferred conclusion and cherry-pick history to support it.) Her opinion in the Boston bomber case is a snoozer about federal appeals courts’ authority to impose procedural rules on district courts; it’s really just a summary of her own 2006 law review article. Her few concurrences pertaining to religious freedom were surprisingly open-ended and noncommittal for a justice who was expected to produce a robust free exercise jurisprudence.
Barrett’s defenders might argue that her modesty is an admirable trait, a signal that she is approaching the job with discipline, restraint, and a refreshing lack of ego. It’s hard to reconcile this claim with the justice’s eagerness to tour the public speaking circuit offering partisan speeches and taking potshots at journalists. A willingness to speak in political venues while remaining silent on the actual judicial job doesn’t bespeak modesty; it suggests one is a merely political actor.
Nor do Barrett’s votes evince modesty or restraint. Over the last term, Barrett drifted rightward, away from Roberts and Kavanaugh toward the Thomas wing of the court. Time and again, when the court split 5–4, Roberts and Kavanaugh joined the liberals while Barrett sided with the extreme reactionaries. She tried to block Biden’s vaccine mandate for health care workers and his repeal of Trump’s anti-asylum policy. She sought to stop returning veterans from suing state employers that discriminate against them. And she attempted to prevent death row inmates from effectively challenging their method of execution.
Based on this evidence, many progressives have concluded that Barrett is exactly what she professes not to be: a partisan hack. Perhaps she is. But she is also a law professor. And her rocky start demonstrates the drawbacks of launching a law professor into the highest echelon of the judiciary. Outside of a leadership role like dean, academia is poor preparation for the Supreme Court. Professors debate ideas, write law review articles, and attend conferences to promote their scholarship. They think and talk about power rather than exercising it. Most do not expect millions of strangers to pore over their entire record with a critical eye.
From Day One, Barrett has approached this job as an academic. She treats cases like intriguing thought experiments rather than disputes between real people with life-and-death consequences. Her worst questions, like the “safe haven” disaster, sound like a parlor game. It’s easy to envision Barrett probing a student with such a question in an effort to test the strength of their argument. At oral arguments, though, it sounded like a callous minimization of the devastating burdens imposed by pregnancy.
Maybe none of this matters. Trump and the Federalist Society nominated a legion of conservative law professors because they valued ideological purity over practical experience. The learning curve, they reasoned, is irrelevant with life tenure; judges have decades to settle into the role. True enough for now. But the Supreme Court is simultaneously the most and least powerful branch: capable of striking down any law or executive action, yet incapable of enforcing its decisions with anything except persuasion. It derives its authority from our buy-in. If Barrett does not get with the program, she may imperil the conservative revolution that has only just begun.
