Many Americans are frustrated with Justice Amy Coney Barrett. When Barrett was nominated, hopes were high as the result of her substantial writings and known judicial philosophy as a law professor. Every constitutionalist loved her record.
So, what happened? Several factors are likely at play, but first it is important to understand that Justice Barrett is not engaging in judicial activism, a term used in decades past as the tool of a corrupt judiciary to invent new so-called “rights” not found in the text of the U.S. Constitution. On the contrary, Barrett has been a key vote in reversing some of the most activist precedents of modern history – such as in Roe v. Wade, which created a federal right to abortion; and Chevron v. Natural Resources Defense Council, which protected the power of the federal bureaucracy.
Rather, Barrett seems to engage in activism’s counterpart, which we might call judicial passivism.
A number of possible factors may be impacting Justice Barrett’s rulings, but perhaps the largest factor is her passivist disinclination to use the “shadow docket” to decide interim issues on appeal before the full case has come before the court. Although this may be a decent general rule, it is not required by the Constitution and, therefore, should not be treated as an inexorable command, especially when its over- application leads to manifest injustice – or worse yet, to a constitutional crisis that threatens to weaken the entire United States judiciary.
For example, in 2021, Justice Barrett declined to enjoin Indiana University’s COVID vaccine mandate. Also in 2021, she concurred in refusing to enjoin Maine’s COVID vaccine mandate that applied to health care workers and offered no religious exemptions. Barrett’s reasoning for denying the injunction leaned heavily on concern about litigants abusing the shadow docket as a way to “force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument.”
Yet when Barrett heard a similar vaccine mandate matter on the merits, she ruled favorably by opposing a Biden-era rule from the Centers for Medicare and Medicaid Services rule imposing COVID vaccines on healthcare workers and staying an OSHA mandate requiring vaccination (or masking and weekly testing at the employee’s expense) for workers at businesses of 100 or more employees.
Perhaps the most glaring example of Barrett’s proclivity for judicial passivism in the “shadow docket” arena is seen in her ruling against President Trump when, just days before he took office, he asked the Supreme Court to stay New York Criminal Judge Juan Merchan from imposing a criminal sentence. In the order Barrett joined denying Trump’s request to stay sentencing, the Court contended that “the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.”
However, a never-before-seen case in which a U.S. president-elect faced a criminal sentencing hearing days before he was set to assume office hardly constitutes the ordinary. Treating the extraordinary weaponization of the justice system to punish a political enemy as “ordinary” was incongruous, unwise, and a threat to our republic.
More recently, many were dismayed when Barrett refused a plea by the Trump administration to continue a freeze on over $2 billion in foreign aid—yet another “shadow docket” occasion in which Barrett displayed a passivist bent. Only time will tell how she might rule on such a case if heard in full on the merits. One can only hope that justice and courage would prevail.
Our justice system demands judges who engage with wisdom and are neither activist nor passivist. Judges who seek to avoid, shirk, or delay serve the cause of passivism and fail to manifest justice. British statesman William Gladstone properly observed that “justice delayed is justice denied.”
Thankfully, Justice Barrett is not a judicial activist. However, we pray she embraces the truth that justice has no power to protect itself. It must be defended by Supreme Court justices who engage and are neither activist nor passivist.
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