The Supreme Court is not being honest with you
Justice Amy Coney Barrett delivered a speech this week that echoed decades of conservative talking points about the proper, limited role of judges in a democracy. But that restrained vision is completely divorced from Barrett’s own conduct as a conservative justice — not to mention that of the Republican majority she consistently votes with.
Her remarks, which were offered at an academic symposium hosted by Notre Dame Law School, were grounded in the rhetoric of judicial restraint that Republican politicians have used to talk about the proper role of the courts at least as far back as Richard Nixon.
The Court’s youngest justice drew a distinction between “pragmatists,” judges who “tend to favor broader judicial discretion,” and “formalists,” who “tend to seek constraints on judicial discretion” and “favor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.” She placed herself in the latter camp.
As a justice, however, Barrett has behaved as an unapologetic pragmatist. Along with the Court’s other Republican appointees, Barrett supports flexible legal doctrines that give her Court maximal discretion to veto federal regulations that a majority of the justices disagree with — especially regulations promoting public health or protecting the environment. And she’s joined her fellow Republican justices in imposing novel limits on the Voting Rights Act that appear nowhere in the law’s text.
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’t roll back voting rights or strike down a key prong of President Joe Biden’s efforts to promote vaccination because they prefer weaker voting laws and a flaccid public health system — they simply did what the law requires.
https://www.vox.com/2022/2/19/22934915/supreme-court-justices-not-honest-amy-coney-barrett-notre-dame-abortion-voting-rights
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