Earlier this month, National Review published an editorial defending Justice Barrett, titled "Injustice Toward Barrett." The editors graciously invited me to write a response, which was published today. It is titled Counting All of Justice Barrett's Votes. Here is the introduction:
Of President Trump's three Supreme Court appointees, Justice Amy Coney Barrett has been subject to the most severe criticism. She's earned it. Most of the defenses of Barrett, including in these pages, highlight the important conservative majority opinions she has joined. It's true that she joins Justices Thomas and Alito, the Court's standard-bearer conservatives, in nearly 90 percent of the merits cases. But that voting record is not something that should have ever been in doubt. President Trump knew better than to appoint another moderate like Justice Sandra Day O'Connor, let alone a liberal like Justice David Souter.
Barrett is unquestionably a judicial conservative. Still, a complete assessment of Justice Barrett requires looking beyond the merits docket. On the Supreme Court's interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues. Conservatives should not blind ourselves to where Barrett has consistently fallen short. All you have to do is count all her votes.
I walk through nearly three dozen cases on the interim and certiorari dockets where Justices Thomas and Alito were on one side, and Barrett was on the other. Here is a snippet:
