Professor Barrett Was At Home In CASA
After the Supreme Court decided Trump v. CASA, the Wall Street Journal editorial page took a victory lap. The editors, who have consistentyl defended Barrett, wrote “What an end-of-term rejoinder to the MAGA loudmouths who have been complaining that Justice Barrett is a pushover.” On July 4, the WSJ published a letter to the editor as a follow-up:
A few months ago I ran into Justice Neil Gorsuch and lamented some of his colleagues’ recent opinions. I criticized Justice Amy Coney Barrett and Justice Ketanji Brown Jackson in particular, both of whom had recently ruled against the Trump administration. Justice Gorsuch was characteristically gracious and spoke of how each was entitled to his own opinions.
I once was what your editorial “The Supreme Court Kills ‘Universal’ Injunctions” (June 28) refers to as a “MAGA loudmouth.” After reading Justice Barrett’s superb opinion in Trump v. CASA, I am a repentant MAGA loudmouth. She is a star—and I regret ever doubting it.
Joel Marks
Richmond, Va.
Did this encounter with Justice Gorsuch actually happen? I find this conversation so implausible. And I cannot find any record for a Joel Marks who is an attorney in Richmond. I searched the Virginia State Bar for a Joel Marks and found nothing. I did find a news story from Henrico County, Virginia, where a Joel Marks complained about a broken water main.
I provide this background to illustrate how poorly the criticism of Justice Barrett is understood. If Marks criticized Barrett for simply ruling against Trump, he has no idea what he is talking about. And if he thinks that Justice Barrett’s decision in CASA suggests she will not rule against Trump in the future, then Marks really has no clue what he is talking about. Why then did the WSJ give Marks the time of day? Marks fit the template–those who doubted Justice Barrett now have no doubts.
My doubts remain. Indeed, they are reinforced. These doubts predated Trump’s re-election, and were never premised on whether Barrett rules for Trump. Brackeen and Vidal are critical data points, combined with a string of emergency docket rulings, and a consistent record of denying cert on important cases. My concern is this: how much evidence does Barrett requires to reach an originalist ruling. Academics, as a whole, require fully-developed theories based on a volume of scholarly articles to reach a solid conclusion. Judges, generally, do not.
Trump v. CASA should not have been a particularly difficult case. There is fairly overwhelming evidence that universal injunctions are recent innovations, and that under Grupo Mexicano, such novelty is doubtful. Justices Thomas and Gorsuch reached this conclusion years ago with ease. I can imagine Justice Scalia disposing of this case pretty easily.
Yet, Justice Barrett’s opinion reads like a la
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