Barrett clerked for Justice Antonin Scalia. Because she openly admired his jurisprudence, many assumed she would follow a similar path on the court. When Trump nominated Barrett, she made it clear in her own statements that her judicial approach would mirror Scalia’s, saying, “His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they may hold.” Barrett’s approach is one of textualism and originalism. Some on the Right who may have hoped for a second Scalia era have been left disappointed. But contrary to what some have suggested, it is not due to Barrett being compromised or because she’s a shiny new tool of the Democrats.

Each side praises some of Barrett’s decisions while deriding others, to varying degrees. Neither side is fully comfortable with the justice who can’t be easily defined.

During Barrett’s confirmation hearing for the 7th Circuit Court of Appeals in September 2017, three years before she ever reached the Supreme Court, the late Democratic Sen. Dianne Feinstein said to her, “I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.” That was but one moment when the religious Right felt a fighter had been chosen to ascend to the federal bench. The devoutly Catholic Barrett was seen as a hopeful addition to the judiciary, one whose inclusion would mean a change for the better. This was a hope that would only grow once Trump nominated her to the Supreme Court three years later.

That hope was validated a month after her Senate confirmation to the Supreme Court, when Barrett demonstrated a clear ideological shift on the court in November 2020 in Roman Catholic Diocese of Brooklyn v. Cuomo.

The emergency decision, right in the midst of the COVID-19 pandemic, dealt with attendance limits at churches and synagogues. In the 5-4 decision, Barrett joined the majority, standing opposite the liberal members on the court and Chief Justice John Roberts. The religious victory only reinforced to conservatives that the right person was chosen. Meanwhile, Democrats considered it the first proof that their fears were becoming reality.

However strong her start on the high court, the specifics of those early decisions have been largely forgotten. Republicans, Democrats, and the media didn’t really start paying full attention until Barrett joined the majority in one of the defining moments in the court’s history.

On Dec. 1, 2021, the justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization concerning the constitutionality of a right to abortion. For an untold number of pro-life Americans, this case earned all their attention. The very possibility of a future without Roe had played a major role in securing Election Day votes for Trump. The president’s direct hand in nominating Justices Neil Gorsuch, Brett Kavanaugh, and Barrett meant the door was held open for this kind of landmark decision. On June 24, 2022, the court issued its decision. In a 6-3 judgment, the majority upheld Mississippi’s abortion ban. Roberts concurred only on the judgment. The decision to overturn Roe v. Wade and Casey v. Planned Parenthood was a 5-4 split, with Justice Samuel Alito writing the majority opinion, joined by Justices Clarence Thomas, Gorsuch, Kavanaugh, and Barrett. Nearly half a century of federally guaranteed abortion was reversed overnight, and a United States without Roe was finally realized.

Conservatives around the country rejoiced at the righting of a legal and moral wrong. For those on the Right who had been nervous about Barrett, their fears were all but put to rest. She had passed the biggest judicial test, making history as a woman and member of the court’s conservative bloc. Meanwhile, Democrats felt more resolute than ever in their initial assumptions about her. In their minds, her actions as a woman had cemented a kind of gendered betrayal.

For both sides of the aisle, the premature conclusion emanated from the same starting point: Whatever Barrett does in the future, she helped to overturn Roe and Casey. For the Right, this was a massive point in her favor that could never be tarnished. For the Left, it was a sin that would never be forgotten.

For the most part, the first few terms of Barrett’s tenure existed within partisan assumptions. The Right felt secure in her stability, and the Left felt security in its collective animosity. It wasn’t until 2024 that staunch Republicans began to wonder aloud if Barrett was turning into more of a swing vote than had been previously anticipated.

Murthy v. Missouri, argued in March 2024 and decided that June, is one that bothered conservatives. The case centered on allegations that the Biden administration put pressure on social media companies to suppress certain types of speech. The speech in question included conservative views such as those critical of the Biden White House, COVID-19 policies, and election matters. The underlying questions about First Amendment rights were significant, but the court did not reach them. Barrett wrote the 6-3 majority opinion. In it, she wrote that the plaintiffs did not establish the standing necessary to bring their specific claims. For those who expected the Supreme Court to address what they saw as government censorship, the decision was a disappointment. With Barrett writing the majority opinion, that frustration landed on her. However, her reasoning was not a departure from judicial philosophy but an example of it. Rather than deciding the case based on the significance of the speech involved, she focused on the legal requirements that were needed to bring the claims in the first place. What appeared to casual observers to be a departure from the norm was really an example of the judicial approach she had articulated from the beginning.

Weeks earlier, Barrett had broken from the conservative bloc for a different reason, and this time, it hit closer to home. Fischer v. United States, decided June 28, 2024, asked whether a federal obstruction statute could be used to charge Jan. 6, 2021, Capitol riot defendants with obstructing an official proceeding. In a 6-3 decision, Roberts wrote for the majority, joined by Thomas, Alito, Gorsuch, Kavanaugh, and, unexpectedly, Justice Ketanji Brown Jackson. They ruled that the statute only applied when the charged person “impaired the availability or integrity” of a physical document or item used in an official proceeding. Barrett dissented, joined by Justices Sonia Sotomayor and Elena Kagan.

This wasn’t a minor split. The ruling didn’t just affect Joseph Fischer. It had direct implications for the federal case against Trump himself. Most would have expected Barrett to welcome an outcome that worked in the former president’s favor. But she did not. Instead, she used the phrase “textual backflips” to describe what the majority was doing in avoiding the statute’s plain language. This was exactly what one would expect from a justice who had built her entire reputation on reading the law as written.

For conservatives still stewing over Murthy, Fischer only deepened the confusion, and in the opposite direction. But it was the same justice who had said years earlier that judges aren’t policymakers, still holding to that line even when it cost her side a win.

On April 25, 2024, the court heard oral arguments in Trump v. United States. What is now considered a landmark decision dealt with presidential immunity from prosecution for acts committed while in office. The case itself arose from Trump’s conduct in reaction to the 2020 election, including claims that it was stolen or that there was broad election interference. This naturally extended to the Capitol riot. The final decision, handed down on July 1, 2024, was a 6-3 split. The court held that a former president has absolute immunity from criminal prosecution for actions that fall within the president’s exclusive constitutional authority. For other official acts, they enjoy at least presumptive immunity. There is no immunity for unofficial acts.

Roberts wrote the majority opinion for this case. Barrett wrote a separate opinion concurring in part. She agreed with the majority while carving out a very significant part of its reasoning.

“Barrett agreed with the majority ‘that the Constitution prohibits Congress from criminalizing a President’s exercise’ of his core constitutional powers and ‘closely related conduct,'” Amy Howe at SCOTUSblog reported. “But she would have courts approach the question of immunity for other official acts differently, by focusing first on whether the criminal law under which a former president is charged applies to his official acts and, if so, whether prosecuting the former president would interfere with his constitutional authority.”

None of this indicates a divergence from conservatism, nor does it suggest that Barrett was compromised by peer pressure or partisanship. Instead, it provides evidence that Barrett’s jurisprudence is her own.

By 2026, the pattern had become almost impossible for the Right to ignore. This most recent Supreme Court term has only increased the questions surrounding Barrett’s so-called judicial purity. 

In late June, the court struck down Trump’s executive order ending birthright citizenship, a case Trump cared enough about to show up for oral arguments in person that April. His attendance was a historic first. Trump’s order was aimed primarily at the children of illegal immigrants, but historically, the principle of birthright citizenship had been held to be quite broad. The outcome shouldn’t have shocked anyone paying close attention. Every lower court to hear the case had already rejected the order, and legal scholars across the spectrum agreed the argument ran headlong into the 14th Amendment’s citizenship clause. But conservative media didn’t treat it as a foregone conclusion. They treated it as a betrayal, and Barrett, once again, was the problem.

The mail-in ballot ruling a few days later was worse, because this time, Barrett wasn’t just part of the majority — she wrote it. In a 5-4 decision joined by Roberts and the court’s three liberal justices, Barrett held that federal law doesn’t bar states from counting mail-in ballots received after Election Day. The Right didn’t hold back. One prominent conservative commentator accused her of “judicial activism disguised as selective originalism,” while a retired Army officer went further, calling her the worst pick among all the judges Trump had put on the bench. It was no longer just online outrage, either. Trump himself began privately complaining about Barrett to allies.

The overriding problem with Barrett isn’t that she has abandoned her original judicial philosophy. It isn’t that she somehow betrayed Scalia’s legacy by not reproducing his record on the Supreme Court. What is clear is that there is a misunderstanding of what a justice does, especially in a time so infected with tribalism.

Barrett, as Trump’s third nominee, naturally stepped into a role filled with equal amounts of distinction and pressure. In the minds of many voters, on both sides of the aisle, the Supreme Court is an extension of partisan politics. In one breath, voters can decry legislating from the bench. In the next moment, they praise that very technique when it produces an outcome they want.

As Barrett has said, judges are not policymakers. Because that is true in theory and, as we all should hope, in practice, neither side of the aisle can expect that of her. In Barrett’s case, her focus on originalism and textualism produces outcomes that conservatives have celebrated. Other times, the same judicial methodology results in an outcome that frustrates them. This is hardly proof of betrayal, especially from a justice who has been clear from the start about her guiding philosophy. Perhaps, instead, it is the consequence of taking principles seriously.

Both Democrats and Republicans initially placed Barrett in a category. This was largely due to who nominated her and her part in overturning Roe and Casey. The mistake was allowing these assumptions to remain on autopilot, convinced they had her figured out for the rest of her career. Barrett has disagreed with her conservative colleagues when she believes the law requires it.

This is exactly what people should want from someone tasked with interpreting the law.

TRUMPWORLD ‘OBVIOUSLY’ FEELING BUYER’S REMORSE OVER AMY CONEY BARRETT

Barrett still has decades remaining on the Supreme Court. Given her history so far, questions will linger as to whether she is conservative enough. However, the real question should be whether she applies the law as written, even when doing so is politically inconvenient.

Barrett’s legacy is likely to be mixed. She will certainly continue to surprise colleagues and Supreme Court observers alike going forward. But this is less about perceived failings or ideological pressures. The truth may be that onlookers of all political stripes seem to have forgotten what judicial independence is supposed to look like.

Kimberly Ross (@SouthernKeeks) is a contributor to the Washington Examiner’s Beltway Confidential blog and a contributing freelance columnist at the Freemen News-Letter. She is a mother of two and lives in the southern United States.