What Have We Learned about Justice Barrett?
Sunday’s New York Times featured an extensive profile of Justice Amy Coney Barrett. The article contained one interesting tidbit about the PennEast case. Otherwise the article offered relatively little that was new. It did, however, provide plenty of material for the gristmill.
A key portion of the article summarizes a preliminary analysis of Justice Barrett’s voting record over her first three-and-a-half terms on the Court. That’s not much to go on, but it allows for the editors to include some pretty graphs and provides the basis for over-confident assessments of trends in Justice Barrett’s jurisprudence.
As longtime readers know, I believe Court watchers place too much weight on individual terms, none of which (in isolation) is ever representative of the Court’s overall work. Over time we often see significant vacillation in the percentage of cases decided by any particular margin and rate at which particular justices agree with each other or join the majority. In OT2022 over 45 percent of the Court’s decisions were unanimous. Yet only one year before the percentage of unanimous opinions was only 29 percent. The only thing that really changed between these terms was the Court’s mix of cases.
The unrepresentative nature of individual terms is only increasing as the Court’s docket shrinks, and this magnifies the problem of analyzing voting patterns. If the Court hears only 60 cases or so, and most of the cases are decided unanimously or by an overwhelming majority, a handful of cases can produce dramatic swings. This means we should be circumspect about looking at a few terms and declaring the existence of a definitive trend.
The problems are compounded if one is trying to assess how “liberal” or “conservative” a justice is, particularly insofar as the change in the Court’s composition has changed the composition of the Court’s docket, both because of what cases the justices choose to hear and because of what questions advocates are willing to put before the Court.
All this is a long way of saying I am skeptical of any claims that Justice Barrett is “drifting” to the left, or that we have seen any discernible shift in her voting pattern to date. The idea that a justice who joined the Court’s majorities in Dobbs, Sackett, SFFA, 303 Creative, Cedar Point, Kennedy, West Virginia
Article from Reason.com
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