Justice Amy Coney Barrett is, and always has been, an originalist and a conservative. As such, she understands her proper role as a judge: to say what the law is, not what she wishes it to be. Unfortunately, some activists do not care about the rule of law Barrett and her fellow originalist justices uphold. Instead, they want politicized outcomes, whatever the cost.
In recent years, activists have increasingly threatened harm to the justices and their families. On July 14, Barrett and Justice Elena Kagan testified before Congress requesting increased security funding in response to that threat. Barrett told members of Congress that, in the wake of Dobbs v. Jackson Women’s Health Organization, she had to explain to her 12-year-old son what bulletproof vests are and why she needed to wear one.
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As recently as May, Barrett and her family were the victims of a swatting incident. One of Barrett’s teenage sons opened the front door to go out with friends but instead saw a street full of police responding “to a false report of gun shots and raised voices” in the justice’s home.
No government officials, whatever their views, should have to live with threats of violence against their families. Yet, in response to Barrett’s testimony, some have claimed that such threats are merely the cost of public service. As one commenter wrote, “Amy Coney Barrett finding out her kids have to live in the world she legislates is almost poetic.”
That comment is as evil as it is telling. Barrett is the target of so much criticism because she refuses to “legislate.” Her commitment to originalism, to the Constitution, and to the rule of law prevents her from doing so.
Because this commitment to originalism does not always lead her to rule in favor of their preferred political outcomes, some on the populist Right have called her “a turncoat” and a “DEI hire.” Like the progressives of the Left who are eager to pack the court so that it will advance their political goals at the expense of the rule of law, these populists would burn the ship to save the sail.
For those who want a court that produces certain outcomes, whatever the law may say, the difficulty and nuance necessarily involved in careful legal interpretation and application are barriers to be toppled, not opportunities for honest disagreement. For the originalist, those challenges are judges’ raison d’etre.
In Watson v. Republican National Committee, Barrett authored the majority opinion upholding, on statutory grounds, Mississippi’s law that permits the counting of absentee ballots so long as they are postmarked by, and received no later than five days after, Election Day.
Barrett and the majority could be wrong. Honest judges can make mistakes, and four reliable originalist justices dissented in that case. But the only system without human error is a system without humans.
Demonstrating the need for sober-minded consideration, some populists criticized the decision not merely for its legal reasoning, but on the grounds that its outcome was, to them, unacceptable. It seems the populists, frustrated that Congress cannot muster the votes to eliminate mail-in voting in the SAVE America Act, are lashing out at Barrett for failing to legislate from the bench.
A BULLETPROOF VEST, A SWATTING, AND THE COST OF JUDICIAL INDEPENDENCE
When the court has, in the past, ruled based on the preferred outcomes of a majority of its justices rather than according to the law as written, it has done great damage to the Constitution and to liberty. Only recently has the originalist court begun to repair the constitutional fabric, overturning such cases as Roe v. Wade, Humphrey’s Executor, and Chevron. Barrett joined the majority to overrule all three and has been a critical part of the restoration process.
Throughout her brief tenure, Barrett has been a laudable advocate for the American government’s constitutional design: a government of laws and not of men. As President Theodore Roosevelt remarked, “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena.”
America is better off with Barrett in the arena.
J. Marc Wheat is general counsel at Advancing American Freedom.