On Monday, I wrote about Mike Fragoso's defense of President Trump's decision to appoint Justice Barrett. Fragoso has now published a second installment, which defends Justice Barrett's record on the Court. Fragoso, to his credit, acknowledges that Justice Barrett votes differently than Justice Thomas. He chalks Barrett's different voting patterns to what he calls the Justice's "apolitical proceduralism." Fragoso has written what I think are the best defenses of Barrett's appointment and her record on the bench. Ultimately, I think his essay backfires, and furthers my case.
First, we can start with the merits docket. Fragoso writes, "Most importantly, Barrett got rid of Roe v. Wade." True enough, but there is more than meets the eye. The New York Times reported that Barrett changed her vote to deny cert in Dobbs. That the case was granted was due to Justice Kavanaugh, and not Justice Barrett. Pulling back, every judicial conservative has understood for nearly half a century that Roe had to be overturned. Should we really be celebrating a decision like Dobbs that was so clearly right? And in Moyle, an important follow-up case to Dobbs, Justice Barrett was not with Justices Thomas, Alito, and Gorsuch.
Second, Fragoso praises Barrett's record on the Seventh Circuit. "Her time on the Seventh Circuit demonstrated a record of clarity and analytical rigor that followed precedent and—where appropriate—urged the court to better align its jurisprudence with the original understanding of the Constitution." Fragoso does not cite any cases here. But one case worth mentioning, that did not appear on Barrett's SJC questionnaire, was St. Joan Antida High School Inc. v. Milwaukee Public School District. I described the case back in 2023:
