The Unsolvable Amy Coney Barrett Problem

Amy Coney Barrett is no originalist and probably isn’t even leaning right at this point. She joined the three radical leftists to say the President can’t use the Alien Enemies Act to deport terrorist cartel members. Even Justice Roberts didn’t join her.

This lends support to radical Norm Eisen’s recent remarks that she and his friend Justice Roberts hate Trump and will continue to vote against him.

We are stuck with her. Many conservatives had misgivings about her. Unfortunately, they lost.

She’s Out of the Shadows

When important cases come up, she is on the side of the radical left, and there is nothing we can do about it.

Barrett denied an appeal from students at Indiana University to block the school’s vaccine mandate.  She rejected an appeal from a Catholic hospital that was centered on the hospital declining to perform a hysterectomy on a biological woman who identifies as a man. She ruled against Texas on the border razor wire.

In June, Barrett was very confrontational with Thomas over a minor case about trademarking crude anti-Trump T-shirts. It was so aggressive that at least one legal observer said it seemed more than just about the T-shirt free speech case.

Justice Clarence Thomas wrote an opinion that was joined in large part by most of their conservative colleagues and emphasized the tradition of allowing individuals control over trademark protections related to their names. While Justice Barrett agreed with the decision, she wrote that she saw less relevance to the history. She ultimately concluded that the restriction passes constitutional muster. Each of the three liberal justices signed onto at least some of Barrett’s concurrence.

Notably, just two years ago, Barrett appeared to be fully on board with the originalist approach that Thomas has long championed.

I think she lied about being an originalist to get the job, but that is neither here nor there.

She believes in a living Constitution that changes with the whims of the culture. I also suspect she wants liberals to respect her. They never will! https://t.co/K7Q4qNN2Ra

— Carol Swain Enterprises, LLC (@carolmswain) June 21, 2024

Living Constitution?

On the question of upholding a gun restriction aimed at domestic abusers, Barrett and at least one other conservative might pivot away from Bruen.

A year ago, in a case involving the admissibility of confessions by conspirators, Barrett again accused Thomas of making too much of a very limited historical record.

“The court over claims. That is unfortunate,” Barrett wrote in a solo concurrence, referring to Thomas’s majority opinion. “While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most,” she declared.

In a speech last year at Catholic University, Barrett repeated the point. “We have to be very, very careful in the way that we use history, she said. She added that deploying historical evidence to advance a legal conclusion can be like “looking over the crowd and picking out your friends.”

It sounds like she is leaning toward a “living constitution.”

We know she rejected the case against the censorship of conservatives, and this week, she wants the illegal alien, provably an MS-13 gangster, back in the country.

Watch this analysis:

Remember how ridiculous she was over the George Floyd case? George Floyd was a violent career criminal, on drugs, passing counterfeit money at the time of his death. He almost certainly died from the enormous amount of drugs in his system.

Appointing a woman, namely Amy Coney Barrett, was a huge mistake. Not only did she just side with the liberal judges on the deportation case. But listen to her talk about George Floyd, a violent thug who assaulted a pregnant woman and died of fentanyl poisoning while resisting… pic.twitter.com/TLPTnS8Zjd

— Kim “Katie” USA (@KimKatieUSA) April 8, 2025

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