Is Amy Coney Barrett reminding us that, with Supreme Court justices, what you see is not always what you get, because some appointees are more than they seem, or grow in the job?
We progressives dismissed Barrett as a rabid anti-abortion advocate. At least she had adopted children, two from Haiti. She is definitely conservative, but her “conservative” votes have decreased from near 80% of cases to below 60%. Trump’s attacks on the courts and constitution push her away. She and Chief Justice Roberts seem the slim hopes that the Court might check Trump’s dictatorial behavior.
Critics called California Governor Earl Warren “a politician, not a jurist.” He’d been a judge for a year at some point. But he became one of the most effective and impactful chief justices in history, perhaps ranking behind only John Marshall. The Warren Court issued Brown v. Board of Education, (integrating schools), Reynolds v. Sims (one person, one vote), and criminal procedure classics such as Miranda and Gideon.
Hugo Black transcended his youth, which included Ku Klux Klan membership (de riguer for a young Alabama lawyer, he claimed) and zero judicial experience to become a steadfast guardian of civil liberties for decades. Folks belittled New Hampshire’s David Souter as “the stealth judge,” guessing he was a nobody who would at least prove reliably conservative; but his commitment to precedent and careful jurisprudence eventually made him a centrist to liberal justice, respected for his integrity and clear thinking.
Many disrespected Sandra Day O’Connor, the first female justice, for being a woman and a westerner, with just state court judicial experience. (O’Connor grew up on a ranch just across the Arizona line, and her mentor was lively young lawyer E. Forrest Sanders, later a crusty old district judge here and a great friend of mine.) She became a fine justice.
Even the great Chief Justice John Marshall (1801-1835), could qualify. He’s revered, partly for establishing more clearly federal supremacy and the Court’s power to invalidate Presidential or Congressional actions that violate the Constitution. But Marshall, when appointed, was a political operative and mostly self-taught lawyer. (Few realize that the Court was initially viewed as so trivial that justices often took months getting to New York to serve. The first chief justice, John Jay, cared more about diplomatic work and governing New York than about his judicial sideline.
I’m not nominating Barrett for some judicial hall of fame. She was complicit in such embarrassments as the Trump “presidential immunity” idiocy. (Her self-proclaimed “originalism” - the backward view that the Constitution is less a living document than a historical one to be interpreted as its authors would have – must have been in Tahiti, because the writers of the Constitution feared above all any king, and rejected any idea of such immunity.) Trump appointed her to overturn Roe v Wade. Although she voted to axe Roe, in the initial secret vote on whether or not to hear the case, she voted no.
She has shown some judicial independence, as well as the kind of diligence and careful legal thinking to write concurrences. Concurrences say, “I agree with this result, but for these different reasons.” Concurrences matter, when lawyers and lower-court judges try to discern how a 5-4 Supreme Court precedent applies to the somewhat different facts of other cases. They also express enhanced respect for law.
Too, beggars can’t be choosers – and we civil libertarians are beggars just now.
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[The above column appeared Sunday, 22 June, 2025, in the Las Cruces Sun-News, and on the newspaper's website on the newspaper’s website and the KRWG website (under Local Viewpoints). A shortened and sharpened radio commentary version will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). That website also contains station archives.]
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