By Charles C. W. Cooke
Thursday, March 06, 2025
Yesterday, Justice Amy Coney Barrett joined the 5–4
majority that ruled against President Trump in the case of Department of
State v. AIDS Vaccine Advocacy Coalition. This has occasioned a great deal
of criticism of Barrett from the right — to the point at which many
commentators have felt comfortable describing her as a “mistake,” or even as a
“DEI hire.”
This is nonsense. Barrett is a terrific justice, and, in
most cases, those who are criticizing her are forgetting the proper role of the
judiciary. Yes, in this case I think Barrett got it wrong. On this, I agree
with National Review’s
editors. But that’s going to happen from time to time with judges who
refuse to be drones. Barrett is extremely intelligent, and she has a coherent
and thoughtful approach toward the law. There is precisely no evidence that she
is motivated by hostility (or obsequiousness) toward Donald Trump or that she’s
a coward or a squish, or that she’s “evolving” in office toward a living
constitutionalist (read: completely made-up) position. Barrett voted with the
majority in overturning Roe, in killing affirmative action in Students
for Fair Admissions, Inc., and in upholding the Second Amendment in Bruen
(she has some quibbles with the methodology in the lattermost case, as is her
right). She’s been terrific on issues concerning separation of powers and
freedom of religion, and on protecting the authority of the legislature. She is
a solid originalist, and, on that score, she is better than all but a handful
of the justices who have served in the modern era.
Over the last four years, I’ve disagreed with Barrett a
few times, but never because I’ve thought she was playing games, engineering a
preferred outcome, or giving in to political pressure. As a former legal
academic, Barrett clearly has some procedural preferences — she’s more hawkish
on standing than many, she’s skeptical of the virtues of the emergency docket,
and she dislikes reaching the merits of a big case when the details aren’t
entirely clear — and she follows those preferences rigorously. As far as I can
see, this is what she did here. While I agreed with the dissent rather than the
majority (which did not present much of an argument), the fact that (1)
temporary restraining orders are not supposed to be appealable and (2)
the facts of this particular case were hotly disputed made a comprehensible
Barrett-esque case against the Court’s getting involved this time. Were I a
Supreme Court justice, I’d have come to the opposite conclusion, but my dissent
would have been narrow rather than perplexed. This was not the sort of
unmoored, mystical, shapeless garbage that we routinely got from John Paul
Stevens, David Souter, and Anthony Kennedy, and nobody should allow themselves
to be persuaded otherwise.
To look at these narrow foibles and conclude that Barrett
was a poor choice by Donald Trump thus strikes me as extreme and ridiculous. To
go one further and complain that the problem with Barrett is that she does not
automatically vote with the Trump administration strikes me as corrupt. Barrett
is an excellent justice who takes her job seriously. Sometimes, her attachment
to her prerequisites is going to benefit the team that appointed her, and
sometimes it is not. Which is the whole point of the judiciary — or at least
ought to be.
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