\n\n“The Court\u2019s youngest justice drew a distinction between \u201cpragmatists,\u201d judges who \u201ctend to favor broader judicial discretion,\u201d and \u201cformalists,\u201d who \u201ctend to seek constraints on judicial discretion\u201d and \u201cfavor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.\u201d She placed herself in the latter camp.<\/p>\n\n\n\n
As a justice, however, Barrett has behaved as an unapologetic pragmatist. Along with the Court\u2019s other Republican appointees<\/a>, Barrett supports flexible<\/a> legal doctrines<\/a> that give her Court maximal discretion to veto federal regulations that a majority of the justices disagree with \u2014 especially regulations promoting public health<\/a> or protecting the environment<\/a>. And she\u2019s joined her fellow Republican justices in imposing novel limits on the Voting Rights Act that appear nowhere in the law\u2019s text<\/a>.<\/p>\n\n\n\n The rhetoric of judicial restraint is potent, so it is understandable why Barrett wants to tap into that potency. Formalist rhetoric enables the justices to claim that they didn\u2019t roll back voting rights<\/a> or strike down a key prong of President Joe Biden\u2019s efforts to promote vaccination<\/a> because they prefer weaker voting laws and a flaccid public health system \u2014 they simply did what the law requires<\/a>.<\/p>\n\n\n\n And Barrett is hardly the only justice to engage in such rhetoric. Justice Neil Gorsuch recently published an entire book<\/a> claiming that judges should rely almost exclusively on the text of a statute or constitutional provision while interpreting it. Justice Clarence Thomas frequently calls for radical shifts in the law<\/a>, claiming they are necessary to restore the \u201coriginal understanding<\/a>\u201d of the Constitution. Even Justice Samuel Alito, the Court\u2019s most partisan justice<\/a>, recently attributed his new, entirely atextual limits on the Voting Rights Act to having taken \u201ca fresh look at the statutory text<\/a>.\u201d<\/p>\n\n\n\n The problem with this rhetoric, in short, is that it bears no resemblance whatsoever to the current Supreme Court\u2019s actual behavior.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Jackson<\/em> involved Texas\u2019s anti-abortion law SB 8, a law that effectively bans all abortions after six weeks, in violation of the fetal viability standard established in Planned Parenthood v. Casey<\/em><\/a>(1992). And SB 8 was, in Justice Sonia Sotomayor\u2019s words, designed to \u201cevade judicial scrutiny.<\/a>\u201d<\/p>\n\n\n\n Ordinarily, when someone wishes to challenge an unconstitutional state law in federal court, they are not allowed to sue the state directly. Rather, such a plaintiff must sue the state official charged with enforcing that unconstitutional law. But Texas tried to design SB 8 so that no state official would be empowered to enforce its anti-abortion provisions \u2014 and thus no one could be sued to block the law.<\/p>\n\n\n\n SB 8 relies on a bounty hunter system<\/a>. Under SB 8, \u201cany person\u201d except for an employee of the state of Texas may bring a lawsuit against any abortion provider accused of performing an abortion after the sixth week of pregnancy. If an abortion provider loses such a suit, they must pay the plaintiff a bounty of at least<\/em> $10,000 \u2014 and there is no upper limit on this bounty.<\/p>\n\n\n\n SB 8, in other words, terrorizes abortion providers by potentially subjecting them to hundreds or even thousands of lawsuits if they are suspected of violating SB 8\u2019s terms.<\/p>\n\n\n\n As Chief Justice John Roberts explains in a dissenting opinion in Jackson<\/em>, Texas did not actually succeed in writing a law that is not enforced by state officials \u2014 and is therefore immune from federal judicial review. Because \u201cthe mere threat of even unsuccessful suits brought under SB 8 chills constitutionally protected conduct,\u201d Roberts wrote, \u201ccourt clerks who issue citations and docket SB 8 cases are unavoidably enlisted in the scheme to enforce SB 8\u2019s unconstitutional provisions, and thus are sufficiently \u2018connect[ed]\u2019 to such enforcement to be proper defendants<\/a>.\u201d<\/p>\n\n\n\n But the five most conservative justices, including Barrett, all backed Texas\u2019s play. Barrett joined an opinion by Gorsuch that effectively immunized SB 8 from any federal lawsuit challenging Texas\u2019s bounty hunter system<\/a>. (Technically, Gorsuch\u2019s opinion allowed suits to move forward against state health officials who play a minor role in enforcing the law, but their role in doing so is so small than a hypothetical court order against these officials would be basically useless.)<\/p>\n\n\n\n The implications of this decision are staggering. As Roberts writes in dissent, quoting from an 1809 Supreme Court opinion<\/a>, \u201cif the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.\u201d Jackson<\/em> provides every state with a roadmap that it can use to neutralize virtually any constitutional right<\/a>.<\/p>\n\n\n\n So what\u2019s really going on here? Would Barrett really vote to uphold a state law subjecting all gun owners<\/a> to SB 8-style lawsuits? That seems unlikely. Among other things, Barrett is an outspoken proponent of more expansive gun rights<\/a>. And a majority of the justices appeared inclined to expand the scope of the Second Amendment significantly<\/a> during a separate case that was argued last November.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Barrett\u2019s pragmatic approach to the law, and that of her Republican colleagues, is also on display in their decisions weighing the Biden administration\u2019s power to protect public health.<\/p>\n\n\n\n Recall that Barrett defined a pragmatic judge as one who tends \u201cto favor broader judicial discretion,\u201d and formalistic judges as those who \u201ctend to seek constraints on judicial discretion.\u201d Since joining the Court, Barrett has sought to maximize her own discretion to veto federal regulations, while eliminating longstanding constraints on judicial power. And she\u2019s largely succeeded in these efforts because she has five colleagues who share the same goal.<\/p>\n\n\n\n Consider the Court\u2019s recent decisions in National Federation of Independent Business (NFIB) v. Department of Labor<\/em><\/a> (2022), which struck down the Biden administration\u2019s rule requiring most workers to either be vaccinated against Covid-19 or be regularly tested for the disease, and Alabama Association of Realtors v. Department of Health and Human Services<\/em><\/a> (2021), which struck down the Centers for Disease Control and Prevention\u2019s eviction moratorium in areas with substantial levels of Covid transmission.<\/p>\n\n\n\n Both cases questioned the power of federal agencies to write binding national regulations under long-existing federal statutes empowering those agencies to do just that. Before former President Donald Trump started remaking the judiciary<\/a>, the Court\u2019s decisions governing such rules urged judges to be deferential to both the agencies themselves and to the Congress that delegated such power to an agency.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “In NFIB<\/em> and Alabama Association of Realtors<\/em>, however, the Court walked away from this more restrained approach to judging \u2014 with Barrett joining the majority in both decisions. Both cases relied on the so-called \u201cmajor questions doctrine,\u201d a doctrine that was invented entirely by judges<\/a>, and that has no basis in any statute or in the Constitution\u2019s text.<\/p>\n\n\n\n This doctrine places vague limits on federal agencies\u2019 power to issue regulations that are likely to have a significant impact. \u201cWe expect Congress to speak clearly when authorizing an agency to exercise powers of \u2018vast economic and political significance,\u2019\u201d the Court stated in both the NFIB<\/em> and the Alabama Association of Realtors <\/em>cases.<\/p>\n\n\n\n The problem with this major questions doctrine is, as federal appellate Judge Jane Stranch wrote in a lower court opinion upholding the Biden administration\u2019s vaccination rules, \u201cthe doctrine itself is hardly a model of clarity, and its precise contours\u2014specifically, what constitutes a question concerning deep economic and political significance\u2014remain undefined.\u201d The Court also hasn\u2019t explained just how \u201cclearly\u201d Congress must \u201cspeak\u201d if it wishes to delegate important powers to a federal agency.<\/p>\n\n\n\n The major questions doctrine, in other words, is an invitation to pragmatic judging<\/a>. The major questions doctrine maximizes judicial discretion because it is so vague, and thus permits judges to invoke it whenever they disagree with a federal regulation and wish to strike it down. After all, if no one can say for sure \u201cwhat constitutes a question concerning deep economic and political significance,\u201d then the ultimate answer to this question will rest with Barrett\u2019s court.<\/p>\n\n\n\n The same can be said about the nondelegation doctrine<\/a>, a similarly vague constraint on federal agencies advanced by Barrett\u2019s five Republican colleagues. (The Court\u2019s most recent majority opinion discussing this doctrine, Little Sisters v. Pennsylvania<\/em><\/a>, was decided a few months before Barrett joined the Court in 2020. So there is still a little uncertainty regarding Barrett\u2019s views on nondelegation.)<\/p>\n\n\n\n The nondelegation doctrine would scrap the deferential approach that the Court advocated in Mistretta. <\/em>In Gorsuch\u2019s words, nondelegation calls upon judges to strike down federal laws permitting agencies to regulate, unless those laws were \u201c\u2018sufficiently definite and precise to enable Congress, the courts, and the public to ascertain\u2019 whether Congress\u2019s guidance has been followed.\u201d<\/p>\n\n\n\n Thus, like the major questions doctrine, the nondelegation doctrine is so vague that it maximizes the discretion of judges to restrict federal agencies. It is a fundamentally pragmatic doctrine under Barrett\u2019s distinction between pragmatic and formalistic judges.” …<\/p>\n\n\n\n “In Brnovich v. Democratic National Committee<\/em><\/a> (2021), for example, the Court fabricated a bunch of new limits on the Voting Rights Act<\/a> that appear nowhere in the law\u2019s text \u2014 including a strong presumption that voting restrictions that were in place in 1982 are lawful, or a similar presumption favoring state laws purporting to prevent voter fraud. As Justice Elena Kagan wrote in dissent, Brnovich<\/em> \u201cmostly inhabits a law-free zone.\u201d”<\/p>\n\n\n\n …<\/p>\n\n\n\n “It would be one thing if this Supreme Court were honest about what it is doing. It could write explicitly pragmatic opinions \u2014 which emphasize the justices\u2019 desire to reach results that a majority of them deem to be fair, and which admit openly that these results cannot be justified by any provision of the Constitution or any federal statute.<\/p>\n\n\n\n But the Court is not being honest about what it is doing. Rather than admitting that they are engaged in an unfettered, pragmatic approach to judging, the conservativejustices continue to wrap<\/a> themselves<\/a> in the rhetoric<\/a> of judicial formalism<\/a>.”<\/p>\n\n\n\n
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