Liberals owe Justice Barrett an apology. She's clearly not in Trump's pocket. | Opinion
Trump's most 'controversial' Supreme Court nominees – Barrett and Kavanaugh – are among the most independent of the conservative majority. Democrats would be better served by understanding that.
A common misconception about the Supreme Court is that it is an outright partisan body that simply rules in favor of Republicans. This stems from the years-long effort by Democrats to undermine the legitimacy of the nation's highest court.
It's just not true.
Last week, the Supreme Court surprised many who feel this way by ruling against President-elect Donald Trump’s petition to delay sentencing in his New York hush money conviction. As is common now, the supposed “conservative court” did not vote as a bloc, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the three liberal justices.
Democrats have been wrong about the Supreme Court for years, especially when it comes to one particular justice.
Are Democrats ready to apologize to Justice Amy Coney Barrett?
Barrett, who cast the surprise deciding vote against Trump, has been criticized by Democrats, yet she continues to rule independently of the conservative majority. In this case, her decision should dispel the myth that she is somehow beholden to Trump.
Democrats' activist allies put Barrett through hell during her confirmation process. They suggested she is a "white colonizer" for adopting two of her children from Haiti, and they likened her faith group to the dystopian ideology in the novel "The Handmaid’s Tale."
Democrats on the Senate Judiciary Committee were careful to avoid the topic of Barrett's religion outright, particularly due to the anti-Catholic comments of California Sen. Dianne Feinstein, who has since passed away, during Barrett's 2017 circuit court confirmation hearing. Instead, they employed different strategies to discredit Barrett, who was heavily questioned on her ability to rule impartially on cases related to Trump.
Senators were openly demanding that Barrett recuse herself from cases related to Trump, simply because he was the president who nominated her, a ridiculous concept then but even more so now given how she has actually ruled in these cases.
Even the motivations behind Barrett's rushed nomination were called into question, painting her as the vessel through which Republicans would finally be able to overturn the Affordable Care Act due to a case arriving at the court about the same time as she did in October 2020.
In hindsight, Barrett joined the majority in leaving Obamacare in place in 2021.
As it turns out, she has proved to be one of the most willing of the court's conservatives to deviate from the supposed extreme MAGA court, particularly in matters related to Trump.
Barrett's latest decision on Trump proves her independence
Barrett’s decision in last week's case stems directly from her partial concurrence on the original question of presidential immunity.
In that case decided July 1, Barrett joined the court’s majority in holding that presidents enjoy some level of immunity for official acts but refused to join the majority's ruling that official acts cannot be presented to a jury as evidence of a crime.
Even beyond this, Barrett has repeatedly demonstrated she is not beholden to the man who appointed her to the court. She has frequently departed from the pack of the conservative majority to rule against Trump.
Last June, Barrett and two liberal justices dissented when the conservative majority narrowed a specific charge for cases involving the rioters at the Capitol on Jan. 6, 2021, including Trump’s own charges, by preventing the charge of obstruction from being applied.
Democrats can criticize Barrett’s form of jurisprudence all they want, but the attacks on her character during her nomination were way over the line.
Her decisions since then have proved a commitment to the law.
The Supreme Court is less partisan than commonly thought
While Democrats like to pretend that the Supreme Court is this highly polarized body that has ruled 6-3 or 5-4 in favor of conservative outcomes at an extremely high rate, this is a pure fantasy.
Just more than half of 6-3 and 5-4 decisions have been drawn across ideological lines, indicating that conservative swing justices (Barrett, Roberts, Brett Kavanaugh and Neil Gorsuch) are almost as likely to split from the pack in contentious cases than they are to join it.
The conservative majority isn’t some oppressive force that dominates decisions; they are perceived as such due to the outcomes of high-profile decisions, such as Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade.
The conservative court is wildly independent, with justices often breaking from the pack.
In the 2022 term, in non-unanimous cases, Barrett agreed more with all three of the liberal justices at the same rate or more often than she did with Justice Samuel Alito. The same is true of Kavanaugh.
In 2023, ideological divides moderately widened on the court. Barrett and Kavanaugh remained among the most likely (only behind Chief Justice Roberts) to agree with the liberal justices.
Both of Trump’s most "controversial" Supreme Court nominees ‒ Barrett and Kavanaugh ‒ are among the most independent of the conservative majority. Democrats would be better served by understanding that.
While Democrats are free to disagree with her jurisprudence, Justice Barrett is as favorable to the liberals on the court as Democrats could wish for. Democrats should regret how they treated her during her confirmation.
Dace Potas is an opinion columnist for Paste BN and a graduate of DePaul University with a degree in political science.