The Next Best Defense Of Justice Barrett: She May Disagree With Justice Thomas A Lot, But You Better Learn To Deal With It, Because She Will Be Here For A Long Time
On Monday, I wrote about Mike Fragoso’s defense of President Trump’s decision to appoint Justice Barrett. Fragoso has now published a second installment, which defends Justice Barrett’s record on the Court. Fragoso, to his credit, acknowledges that Justice Barrett votes differently than Justice Thomas. He chalks Barrett’s different voting patterns to what he calls the Justice’s “apolitical proceduralism.” Fragoso has written what I think are the best defenses of Barrett’s appointment and her record on the bench. Ultimately, I think his essay backfires, and furthers my case.
First, we can start with the merits docket. Fragoso writes, “Most importantly, Barrett got rid of Roe v. Wade.” True enough, but there is more than meets the eye. The New York Times reported that Barrett changed her vote to deny cert in Dobbs. That the case was granted was due to Justice Kavanaugh, and not Justice Barrett. Pulling back, every judicial conservative has understood for nearly half a century that Roe had to be overturned. Should we really be celebrating a decision like Dobbs that was so clearly right? And in Moyle, an important follow-up case to Dobbs, Justice Barrett was not with Justices Thomas, Alito, and Gorsuch.
Second, Fragoso praises Barrett’s record on the Seventh Circuit. “Her time on the Seventh Circuit demonstrated a record of clarity and analytical rigor that followed precedent and—where appropriate—urged the court to better align its jurisprudence with the original understanding of the Constitution.” Fragoso does not cite any cases here. But one case worth mentioning, that did not appear on Barrett’s SJC questionnaire, was St. Joan Antida High School Inc. v. Milwaukee Public School District. I described the case back in 2023:
But one case Barrett did not list was St. Joan Antida High School Inc. v. Milwaukee Public School District. In this case, a Catholic high school contended that the government’s bussing policy treated religious schools unequally. Judge Barrett joined the majority opinion, which found that the government may have had a “rational basis” to impose additional requirements on the Catholic school. The panel did not rule outright for the District. Rather, the court remanded the case to the lower court to determine more facts. Judge Diane Sykes, who was on the original Trump shortlist, dissented. She wrote that “this discriminatory treatment cannot be justified,” even on the current record.
Barrett’s vote in St. Joan presaged her position in two pandemic-era cases involving the Harvest Rock Church and South Bay United Pentecostal Church. At the time, California prohibited singing in houses of worship. Justices Thomas, Alito, and Gorsuch were able to conclude that the record favored a ruling for the church. Justice Barrett, as well as Justice Kavanaugh, suggested that the singing ban may be unconstitutional, but on the limited record, she would not enjoin the policy. Like in St. Joan, Justice Barrett favored hesitancy in the face of alleged religious discrimination. Ditto for Fulton. What Will Baude describes as “look before you leap” is Barrett’s consistent level of caution–a caution that Justices Thomas and Alito lack.
Fragoso repeatedly describes Catholic support of Barrett, though this case did not get the attention it warranted.
Third, Fragoso defends Justice Barrett’s refusal to overrule Smith in Fulton:
To begin, she is very clearly a textualist and an originalist. This has presented some problems for the right, such as when she refused to overturn Employment Division v. Smith because the proposed relief was fundamentally non-originalist.
In Fulton, Barrett wrote that she was not persuaded by Professor McConnell’s originalist research:
While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances.
Rather, she was motivated by arguments based on “text and structure.”
In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.
Barrett’s Fulton opinion was not originalist. I think Professor McConnell has made the case that Smith is wrong as an originalist matter. Justice Barrett apparently disagrees. But she did not offer anything close to an originalist account of the Free Exercise Clause. She simply listed some random questions that really didn’t matter much. And in the wake of Fulton, she has shown no interest in the answers to those questions. And if Fragoso is right, should we believe that Justices Thomas, Alito, and Gorsuch favored a “fundamentally non-originalist.” Of course not. This argument doesn’t hold up.
Fourth, Fragoso celebrates Barrett’s concurrence in Biden v. Nebraska:
But it has also yielded some great analysis, like when she responded definitively to Justice Kagan’s endless trolling about the supposed non-textualism of the Major Questions Doctrine in a masterly concurrence in Biden v. Nebraska.
This defense backfires. Fragoso acknowledges that Barrett is acceding to Kagan’s trolling. It’s true. Justice Kagan has had a palpable influence on Barrett, and has convinced her on a number of topics. That is not something that should be praised. But what Fragoso omits is more important. In Neb
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