It isn’t surprising that a Supreme Court justice who voted to overturn Roe v. Wade, end affirmative action in college admissions, expand gun rights and allow states to ban puberty blockers for minors would receive a lot of criticism, some of it vicious. What’s strange is that the angriest words lately are coming from commentators on the right who agree with those votes.
Podcaster Matt Walsh, posting on X on June 30, called Justice Amy Coney Barrett “a DEI hire,” one who is “little better than” Justice Ketanji Brown Jackson, adding: “The worst Supreme Court Justices of all time have all been women. That’s just a fact.”
The same day, also on X, Rep. Nancy Mace (R-South Carolina) wrote, “Barrett should be removed from the Bench.” White House aide Stephen Miller on Fox News accused the justice of having “decided to cave to the radical left.”
President Donald Trump began disparaging Barrett after the court ruled in February that Congress had not given him the authority to impose tariffs based on a supposed national emergency. He said that Barrett and Justice Neil M. Gorsuch, two of his appointees who voted with the majority, had embarrassed their families and “shown so little respect to our Country.” He complained as well that they went out of their way to show their independence from him.
Barrett-bashers have focused on two other decisions from this term. Barrett wrote a majority opinion holding that Congress had allowed states to count mail-in ballots received after Election Day. And — in the case that has generated the most outrage on the right — she agreed that when illegal immigrants or foreign visitors give birth in the United States, the Constitution grants the children automatic citizenship.
All of Barrett’s votes and opinions are fair game for criticism. The dissenters had some strong arguments in each of these three cases. Frequently, though, the attacks on Barrett don’t even try to demonstrate that she got the law wrong. Sen. Eric Schmitt (R-Missouri) called her mail-in ballot decision “shockingly wrong” and “terrible for election integrity,” sidestepping the key question: whether Congress had ever enacted his ideas about election integrity.
The birthright citizenship decision, meanwhile, closely followed the reasoning of a 128-year-old precedent that neither the Trump administration nor any justice called for overturning. The four dissenters from the constitutional holding in the case had at least three different readings of the law. Maybe four, as it is not clear that Gorsuch and Justice Clarence Thomas agree on whether the Constitution grants citizenship to most children born in the U.S. to illegal immigrants. (Barrett is one of the few justices who did not write an opinion in the case, which makes it a bit odd that she is taking the most flak for it.)
None of that proves that Barrett and the four colleagues who joined the majority opinion got the legal issues right. But it means they weren’t as blatantly wrong as the toughest attacks assume. And while many of the opponents of the decision have spoken as though it puts the U.S. on an inevitable path to doom, the political branches retain many means of combating illegal immigration and birth tourism.
Right-wing activist Stephen K. Bannon, who has said Barrett should step down, has been promoting the idea that Barrett’s jurisprudence suffers from hostility to Trump. But this doesn’t square with her record, including her votes to hold him immune from prosecution for official acts, to quash challenges to his appearance on the 2024 ballot and to block district judges from issuing nationwide injunctions against the Trump administration.
Far from being one of the worst justices in history — which would put her in the company of Chief Justice Roger Taney, the author of Dred Scott — she is among the best. Even if conservatives were to judge her on the basis of how frequently she frustrates their policy objectives, she is nothing like Anthony M. Kennedy, a Republican appointee who often voted with the liberal justices on cases involving abortion, gay rights and the environment. Nor is she like David Souter, another Republican appointee, who voted with liberals on, well, everything.
A new attack on Barrett surfaced after she testified to Congress that Supreme Court justices need more security: Supposedly she was admitting that threats against her were influencing her judicial decisions. She, of course, said nothing of the kind.
You don’t have to agree with all of Barrett’s jurisprudence to recognize that she is, one, thinking about the law in a way that conservatives have championed for decades, and two, helping the court deliver one victory after another, both in legal and policy terms, for the right. Her opinions reflect a calm and fair-minded evaluation of the facts and arguments before her. Her right-wing critics obviously labor under no such constraints.
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