Hunter revealed a peculiar blend of Amy Coney Barrett’s scholarly work and her judicial reasoning.
For many years Ruth Bader Ginsburg wore dual hats as a professor and a litigator. She authored and argued extensively on a wide range of constitutional questions, particularly concerning sex discrimination and abortion. When Ginsburg ascended to the circuit court and later to the Supreme Court, nobody expected her fundamental views on constitutional law to disappear. She did, of course, assure at her confirmation hearing that she would approach issues with an open mind. Yet it was hardly surprising that Ginsburg’s constitutional jurisprudence largely echoed her scholarly agenda. I would argue that the same observation applies to Professors Scalia, Breyer, Kagan, and other academics who became Justices. Indeed, these professors were nominated in part because of their scholarly writings.
Nevertheless, I cannot recall any Justice who openly asserted that her judicial opinion equaled her scholarly opinion—until I encountered Justice Barrett’s concurrence in Hunter v. United States.
Barrett cites two of her own law review articles as support for her judicial opinion:
Like JUSTICE THOMAS, I am skeptical that the Supreme Court possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The SupervisoryPower of the Supreme Court, 106 Colum. L. Rev. 324 (2006). At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883–884 (2008). The former concerns narrow, discretionary rules; the latter involves doctrines, like preclusion and abstention, which are “settled by tradition or emergent consensus.” Id., at 884.
The use of the word “I” here is fascinating. Justice Barrett is “skeptical” of the supervisory power, citing Professor Barrett. Justice Barrett has drawn a distinction, citing Professor Barrett. This is a strange syncretism between Amy Coney Barrett’s scholarship and her jurisprudence. Is there any daylight between what Professor Barrett wrote about two decades ago and what Justice Barrett thinks now? I doubt it.
Supreme Court nominees are often asked about their past writings. The stock answer is that those writings reflected their role as an advocate or professor, but they will approach each case with a fresh perspective. Of course this response is not accurate, as Justices do not forget everything they once knew. And Justice Barrett’s self-citation proves the point.
