Many conservatives and constitutional legal scholars were excited when Amy Coney Barrett was elevated to the Supreme Court nearly four years ago.
Having clerked for former Justice Antonin Scalia, the Catholic mother of seven seemed like the perfect fit to replace leftist Justice Ruth Bader Ginsburg. Speaking of her former boss, Barrett once said, “His judicial philosophy is mine too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
Combined with her fairly solid track record while on the Seventh Circuit Court of Appeals, these facts made it appear that Barrett’s jurisprudence would align with that of originalist Justices Clarence Thomas and Samuel Alito.
In the years since joining the nation’s highest court, however, Barrett has produced a judicial record more akin to that of a moderate than a true originalist. In several high-profile cases, she’s abandoned originalism and sided with the court’s Democrat appointees in legislating from the bench — so much so that she’s now viewed as a swing vote on contentious matters before the court.
In Barrett, conservatives hoped they were getting another Thomas or Alito. What they got instead is a female version of Chief Justice John Roberts or Associate Justice Brett Kavanaugh.
Recent Cases
Finding cases documenting Barrett’s disappointing SCOTUS record doesn’t require much digging. Her abdication of originalist jurisprudence was very apparent during the high court’s 2023-2024 session.
Barrett authored the majority opinion in Murthy v. Missouri, a case centered on a lawsuit filed by several doctors and the attorneys general of Louisiana and Missouri against the Biden administration for its unlawful collusion with Big Tech companies to suppress speech the federal government viewed unfavorably. Despite overwhelming evidence supporting these allegations and the named doctors demonstrating they were specifically targeted, Barrett sided with Roberts, Kavanaugh, and the court’s Democrat appointees in arbitrarily ruling that plaintiffs lacked standing to bring the suit and “have not shown that they are likely to face a risk of future censorship traceable” to the Biden administration.
The decision effectively allows the federal government’s Big Tech censorship scheme to continue indefinitely.
[READ: Amy Coney Barrett Acts Clueless About Hunter Biden’s Laptop]
In a surprising twist, Barrett authored the minority opinion in Fischer v. United States, a case focused on the Biden Justice Department’s broad interpretation of a federal statute weaponized by the agency to indict Donald Trump and hundreds of Jan. 6, 2021, Capitol demonstrators.
Siding with Justices Sonia Sotomayor and Elena Kagan, Barrett played the role of a legislator in a black robe. She ludicrously claimed the DOJ’s distortion of the statute’s “obstruction” provision falls within the confines of the law’s original meaning and could therefore be deployed to charge the criminal defendants.
The law’s obstruction language “is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?),” Barrett wrote. “But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.”
As noted by investigative reporter Julie Kelly, Barrett’s dissent echoes “the words of DC judges who claimed the 4-hour disturbance at the Capitol was so unthinkable that Congress never envisioned that such an event would happen so 1512c2 applies.”
Barrett also sided with Roberts, Kavanaugh, and the court’s three leftists in Moyle v. United States, in which the majority refused to limit the federal bureaucracy’s abortion activism.
It Gets Worse
Barrett’s penchant for toeing the moderate line is hardly exclusive to the Supreme Court’s recent session.
In January, the former Scalia clerk joined the court’s Democrat justices and Roberts in lifting a lower court injunction that prevented federal agents from cutting razor wire installed along the U.S.-Mexico border by Texas. She also sided with these same justices last year in allowing the Biden administration’s so-called “ghost gun” restrictions to go into effect. Second Amendment advocacy groups have characterized the rules as “unconstitutional and abusive,” according to Fox News.
One of Barrett’s most egregious decisions, however, came in July 2021, when she refused to hear the case of Barronelle Stutzman, a florist from Washington state who was sued for declining to provide floral services for a gay couple’s “wedding” based on religious grounds. While Thomas, Alito, and Neil Gorsuch agreed to hear the case, Barrett, along with Roberts, Kavanaugh, and the court’s Democrats, refused. (Supreme Court rules require at least four justices to agree to hear a case before it can be considered by the whole court).
SCOTUS’s inaction resulted in Stutzman ultimately paying a $5,000 settlement to the gay couple, which they reportedly donated to PFLAG, a radical LGBT advocacy group.
Room for Improvement
This isn’t all to say Barrett’s tenure hasn’t produced its good moments. Her role in overturning Roe v. Wade and Chevron deference, upholding certain religious liberty and Second Amendment protections, and nuking racist affirmative action policies, Democrat lawfare, and Joe Biden’s illegal student loan bailout has been invaluable.
These rulings show that Barrett is capable of faithfully applying the law as written and rendering verdicts that align with originalist doctrine. But it’s consistency in executing that philosophy where she falls short.
While hopes that Barrett would join Thomas and Alito in forming a reliable originalist coalition appear to have been premature, there’s still room for a course correction. At 52 years old, Barrett is the youngest justice on the Supreme Court, and she has a long career ahead of her. It’s not too late for her to abandon the squishy moderatism that’s defined her tenure thus far and become the justice that Constitution-loving Americans hoped for.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
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