Justice Barrett has explained that she writes separately when she has the need to articulate some differences with the majority opinion. I previously wrote that Justice Barrett should have written separately in Loper Bright, to explain her views on stare decisis and tradition. Chevron has been on the books for nearly half a century, and has become a settled practice in Congress, in the Executive Branch, and in the lower courts–basically everywhere except the Supreme Court. This would seem to to be the sort of thing Justice Barrett would have concerns about jettisoning, rather than Kisorizing, but she remained mum.
I have similar thoughts about Jarkesy. This case was screaming for a Barrett concurrence. Why? There are tensions between Jarksey and some of Barrett's prior writings and joins about "tradition" or settled practice.
In Jarkesy, Justice Sotomayor's dissent observes that there is nearly a century of practice in which agencies have adjudicated civil penalties "in house," rather than in federal court. This longstanding practice should be entitled to some weight, no? And Sotomayor cites Justice Barrett's Vidal concurrence, as well as Justice Kagan's CFPB concurrence, which Justice Barrett joined:
