In Brackeen, Justice Barrett faulted counsel for the adoptive parents. She wrote that they failed to "offer a theory for rationalizing" the Indian Commerce Clause. Therefore, she was not willing to accept their position. Admittedly, Indian law is very complicated, and the attorneys did not have answers to all of their questions. But in my view, that was not the usual standard in constitutional litigation. Rather, as I saw it, Justice Barrett was imposing a "staggeringly heavy" burden on the petitioners. Indeed, I'm not sure if the arguments in United States v. Lopez, as they were presented in 1996, would have been sufficient for Justice Barrett.
Will Baude offers a way of explaining Barrett's approach in Brackeen, as well as in Fulton v. City of Philadelphia. He calls it the "look before you leap" principle:
In both cases, Justice Barrett wants some account of where a theory of the law is supposed to take her before she decides whether to embrace it. In Brackeen, that's a theory of how to reconcile—or to not reconcile, either one!—the challengers' theory of federal Indian power with the Court's cases. In Fulton it's a theory of what would replace Employment Division v. Smith if Smith is to be overruled. It demonstrates, I think, a quite sensible refusal to just muddle through and assume the law will sort itself out later.
