Amy Coney Barrett has written a book. She’s the latest in a long line of Supreme Court justices supplementing their public service salary with millions of dollars — reportedly a $2 million advance worth, to be precise — despite her meager record as a milquetoast functionary for a reactionary project that she doesn’t seem to understand.
And that seems to be the identity Barrett wants to cultivate. Diving into a copy of the manuscript, CNN’s Joan Biskupic pulls out a series of passages where Barrett tries to drape herself in the role of a powerless cog in the judicial process. Whether she’s being honest with herself or this is just a bit is up for debate, but the memoir sections reveal Barrett is certainly not the proto-David Souter that liberals imagined her to be over the summer.
Take, for instance, her thoughts on Dobbs, the case that put her on the Court to the extent she’s only there because Republicans wanted a woman to replace Ruth Bader Ginsburg when the time came to strike down Roe:
Barrett writes that the “complicated moral debate” about abortion distinguishes it from other rights more traditionally recognized as fundamental that enjoy broad public support, including “the rights to marry, have sex, procreate, use contraception.”
Who wants to break the news to her about the nation’s traditional “broad public support” for the right to marry and use contraceptives?
We don’t know from the snippets in the CNN story if Barrett goes on to provide any evidence for this claim, but based on her record writing opinions, we’ll safely assume she does not. If she did, she would have to deal with the fact that abortion was MORE BROADLY POPULAR when she voted to strike it down (62%-36% approval) than interracial marriage was in 1967. A mere 5% of whites TOTAL supported interracial marriage in the decade before the Loving decision. In fact, interracial marriage didn’t enjoy majority support in the United States until the LATE 1990s.
Of course, Barrett doesn’t really care about a constitutional right being “deeply rooted in US history.” That’s all puffery from an intellectually bankrupt movement. If “the rights to marry, have sex, procreate, use contraception” remain constitutionally protected, it will be because they’re convenient for her personal political mission… for now. There’s no coherent argument for upholding these rights if she honestly believes that constitutional rights are truly contingent upon popular support.
When Alito strikes down Roe and make asides about coming for marriage equality next, it’s at least honest. So what’s Barrett even trying to accomplish with this passage? Everyone who has ever interacted with a Federalist Society chapter knows exactly what she’s going for.
Every Federalist Society happy hour has at least one student who gets off on telling people that they aren’t really in favor of mass suffering, they just care so much about judicial restraint. They’ll take every opportunity to sigh about “hard cases” and claim their “personal sympathies” lie elsewhere, and then cast the deciding vote to crush people anyway. As though it’s the height of nobility to gloss over cruelty with bargain brand stoicism.
Apparently, Barrett wants to cast herself in this lazy, tired role as the reluctant executioner. These are the kids who go out of their way to separate themselves from the Alito trolls planning “Upside Down Flag Day” (catered by Chick-fil-a), hoping to convince the rest of the class that — deep down — they care about women’s rights too, it’s just that the courts aren’t the proper vehicle to protect them. Maybe, if the rest of the students are gullible enough to buy that, the reluctant conservative can still go to all the parties!
It’s legal philosophy as self-flagellation cosplay.
It’s all bullshit of course. If these people sincerely believed that they’re just against involving the courts in an issue properly left to Congress, they’d go home and vote for Bernie Sanders or something. But they don’t. They strike down voting rights and turn around to vote for legislators pushing voter suppression laws. It’s all a con.
After the Dobbs ruling was issued in June 2022 and Barrett was on a family vacation, a brother-in-law arrived with a copy of the decision, saying he was following the justice’s mantra to “read the opinion.”
“Dobbs did not top the list of things I wanted to talk about on vacation,” Barrett writes, referring to court tensions on the case, an investigation over a leaked draft, security threats, and protests at her house.
Still, she says, she hugged him.
Oh no! I’m sure Chief Justice Warren always dreaded having to explain the “tough choices” involved in all those civil rights cases. Justices actually love talking about this stuff, especially if they can cast themselves as the heroes of their own fight for justice. Sam Alito and Clarence Thomas plan whole vacations to talk about their opinions with the highest bidders!
In preparing a memoir, it’s not just what the author writes, but also what stories they choose to include in the book. This anecdote about her brother-in-law doesn’t add much, but she felt compelled to include it to demonstrate… what? That she is – at least occasionally – self-aware enough that she’s making up indefensible bullshit that she squirms when talking to her own family about what she’s doing to the country?
On the subject of conveying meaning through editorial choices, one thing I’ve always appreciated about Joan Biskupic’s writing is how she can deliver very pointed criticism even within CNN’s stricter journalistic guidelines. She can’t point out — like some outlets can — that Barrett’s infamous “read the opinion” remark is condescending nonsense that even the justice can’t possibly believe. But Biskupic can juxtapose the brother-in-law story by immediately cutting to a reminder that Barrett is neck deep in the Supreme Court’s shadow docket shenanigans.
“As long as litigants continue filing emergency applications, the Court must continue deciding them,” Barrett writes, minimizing the justices’ control of the situation.
Except one way — indeed, the proper way based on hundreds of years of Anglo-American jurisprudence — is to resolve the petitions by maintaining the status quo in advance of trial. The Supreme Court could respond to emergency petitions seeking a stay on arbitrarily and capriciously blowing up millions and millions of dollars worth of government research, setting back projects that could take years to fully restaff, by… granting the stay. Instead, and without explanation, the majority has greenlit the administration’s violations of decades worth of administrative law while Barrett shrugs and declared “what else could we do?”
Though, in Barrett’s defense, maybe she’s better off not explaining her opinions. She recently attempted to counter a Justice Jackson dissent, resulting in a pouting concurrence that would’ve failed 1L legal writing at every law school in the land. “We will not dwell on Justice Jackson’s argument…” she wrote before a conclusory and unsupported claim of “nuh uh” in legalese. As a rhetorical strategy, “we will not dwell” simultaneously poisons the well and preemptively lowers expectations for her own attempted response. A more direct translation was “I cannot defend the majority’s opinion so don’t expect to see any supporting evidence here, but, like, seriously, Jackson’s crazy and I refuse to dignify her arguments with a response.” But it was reluctant executioner rearing her head again, as the crux of her lament was that Jackson suggested courts have the power to protect rights — and courts simply aren’t the right actor to do anything.
At least until there’s a Democratic president.
But for now, Barrett has a brand to sell and that brand is FedSoc’s sad Hamlet: reluctant, powerless, oh-so-burdened. She wants you to know that she’s not a troll taking aim at every key precedent of the last 70 years from Griswold to Brown — she’s going to do it anyway, but she wants you to know she’ll feel really bad about it. She’s just the handmaiden of cruelty.
But she’s not reluctant. She’s not helpless. She’s just as much of a troll, but she still wants to be invited to your party.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
The post Amy Coney Barrett’s Fetish For Phony Reluctance appeared first on Above the Law.