Injustice Toward Barrett

National Review Online

Thursday, July 02, 2026

 

Criticism comes, rightly, with the territory of being a Supreme Court justice. Hysteria shouldn’t.

 

With the conclusion of the 2025–26 Supreme Court term and Donald Trump’s defeat on birthright citizenship, we have been treated to another round of abuse from right-leaning commentators directed toward Justice Amy Coney Barrett. The immediate trigger of their ire is Barrett’s joining the Trump v. Barbara majority (along with Chief Justice John Roberts and, on the outcome, Justice Brett Kavanaugh) striking down Trump’s executive order on birthright citizenship. Barrett critics also cite her majority opinion in Watson v. Republican National Committee, which allowed states to accept ballots postmarked by Election Day for up to five days later, as well as her vote (along with Roberts and Justice Neil Gorsuch) to strike down Trump’s “emergency” global tariffs and her rulings against Trump in a few of last summer’s torrent of emergency decisions on deportations.

 

It’s the intemperate vitriol of these attacks, and their utter lack of perspective, that appalls us. Critics brand Barrett a traitor, a DEI hire, and a left-winger who has doomed the country. They complain that she makes poor decisions because she is a woman and a mother of adopted children from Haiti. Perhaps more ominously, there is much muttering that future Republicans should fill judicial vacancies with fewer people devoted to the law and more who will be mere party apparatchiks, voting in the results-oriented fashion we traditionally associate with the liberal justices.

 

The abuse of Barrett by the right mirrors the extent to which she has uniquely triggered the left over the years, from questions about her religion at her first judicial confirmation hearings to fresh charges that her recent votes in favor of Trump immigration policies are some sort of betrayal of her adopted children. As usual, anything done in imitation of the activist left is apt to be mixed with toxins.

 

Leaving aside the indecency of some of the critics, we object on two grounds. First, the predictable, faithful rule of written law is a positive end in itself, and a pillar of the good society. If judges are to be loyal to a party or impose their own preferred ends, they may as well be elected, and most of their powers given over to the other branches. Instead, we expect them to apply as best they can the work of the people’s representatives who made the Constitution and make the laws. That this sometimes puts them at odds with the best results reflects on the lawmakers, not the courts. That this sometimes puts them at odds with  political leaders and popular opinion is a relief to anyone who might someday find themselves in the crosshairs of either and will need to stand upon the guarantees of law.

 

Second, Barrett is an outstanding justice and a key contributor to an outstanding Court. No, we don’t always agree with her, or with the Court’s decisions since her arrival in 2020 formed the current 6–3 majority. Nor, for that matter, do we agree every single time with any of her distinguished colleagues. The Court’s cases are often hard, and its justices fallible. That’s why there are nine of them.

 

The quality of her work shames any suggestion that Barrett makes decisions from emotion or from cowardice. Perfect Olympian impartiality is impossible for even the greatest of jurists, but Barrett’s opinions, and her questions at argument, consistently show the same thorough diligence, even temper, and stickling for detail and proper procedure that characterized her long career as an academic. The only occasions when she has flashed any emotion have been in pointed debates with Justice Ketanji Brown Jackson over questions of methodology and consistency in the majority’s approach. If there is a fair critique of Barrett, it might be that she’s occasionally too devoted to process, especially on issues of standing to sue — but that is by far a lesser sin than its opposite. We wish one could say of her critics that they suffered from too much equanimity and concern for the law.

 

Far more often than not, Barrett has stood courageously with her colleagues in one landmark conservative victory after another: overturning Roe v. Wade amidst threats to the justices’ safety, fortifying the Second Amendment, ending racial preferences, rejecting transgender ideology, protecting religious liberty, expanding space for school choice, reining in the administrative state, closing down avenues to attack secure elections, restricting nationwide injunctions by rogue district judges, swatting down lawfare that sought to jail Trump and throw him off the ballot, and blocking one after another of Joe Biden’s overreaches. This term has been no different, with Barrett joining decisions ending racially gerrymandered districts, allowing Trump to fire agency heads at will, protecting girls’ sports from male transgender athletes, and defending the religious free speech of crisis pregnancy centers and counselors against gender transition. We are almost, but not quite, sick of all the winning. When Roberts and Kavanaugh voted with the liberals to create extra-constitutional protections from Trump for the Federal Reserve, Barrett dissented.

 

Some justices have been known to be good in some areas but not so reliable in others. Yet aside from her devotion to process and methodology, it is hard to find a pattern of issues in the cases where Barrett breaks with conservative outcomes, or with Trump. Before the birthright citizenship decision, for example, she had joined most of the Trump wins in immigration cases on the emergency docket and joined the trio of end-of-term decisions insulating Trump’s Temporary Protected Status decisions from judicial review, allowing immigration authorities to interdict potential asylum applicants before they reached the border and strengthening the power of border authorities to deny admission to criminal aliens. Before Watson, she voted with the majority on most election-law cases. The same could be said of her record in gun cases or on presidential powers.

 

The birthright citizenship case was a hard one; both sides had serious arguments on birth tourism, but the dissenters were not of one voice on what the standard should be, and none of them offered a serious defense of the administration’s position on the children of illegal aliens. Watson was disappointing, but it left open challenges to votes not provably cast by Election Day, and Barrett’s argument was a plausible reading of federal law and respected the primacy of states in regulating elections. In the tariff case, she was clearly in the right, and the president in the wrong. We could say something similar about most of her controversial decisions in five and a half years on the Court.

 

A good justice will never please everyone. But our advice would be to tune out the intemperate critics, because trying to appease them will only make things worse. Fortunately, that seems to be Barrett’s approach. Keep up the good work.