Washington
CNN
—
Prominent legal conservatives on Friday sought to tamp down a wave of sudden criticism directed at Supreme Court Justice Amy Coney Barrett over her vote to reject President Donald Trump’s attempt to freeze nearly $2 billion in foreign aid.
Barrett, a former appeals court judge and law professor who Trump placed on the bench during his first term, joined Chief Justice John Roberts and the court’s three liberals in upholding – for now – a lower court ruling that required the administration to quickly spend the contested aid.
The backlash over that decision from some Trump allies was swift, with one prominent conservative describing Barrett on a podcast as a “rattled law professor with her head up her a**.” Others took to social media to describe her as a “DEI hire” and “evil.”
Trump has scored many significant wins on a court that is the most conservative it has been in decades, with six of nine justices nominated by Republican presidents, including three Trump himself picked. But he’s also regularly lost, including with the first two emergency appeals to reach the high court in his second term.
Several well-known conservatives who for years have sought to push the law to the right told CNN that the criticism was an overreaction to a relatively modest ruling that simply kept the fight over foreign aid percolating in lower federal courts. The majority did not indicate how it would vote in the likely event that the case makes it back to the Supreme Court – possibly in a few weeks.
The reaction appeared to be at least partly a response to a sharply worded dissent from Justice Samuel Alito who accused a lower court that sided against Trump of “judicial hubris.” Three other conservatives – Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – joined that opinion.
Leonard Leo, a prominent conservative legal advocate and board co-chairman of the influential Federalist Society, told CNN he felt that Alito’s dissent was “persuasive” and that the stalwart conservative and former prosecutor “had the better argument.”
But, Leo added, “that doesn’t mean that Justice Barrett isn’t among the most distinguished conservative jurists of the past 100 years.”
“She’s been in the vanguard of conservative jurisprudence on abortion, racial preferences, the administrative state, religious freedom, Trump immunity, guns and the Second Amendment,” said Leo, who advised Trump on Supreme Court nominees during the president’s first term.
The quarrel in the foreign aid spending case, he said, was “a procedural disagreement – and those things happen quite often among conservative justices.”
Ed Whelan, a conservative legal commentator, described Barrett as “an outstanding justice” and said the “criticisms of her are myopic.”
Barrett was viewed as a hero to the conservative legal movement just a few years ago. Weeks after taking her seat, the court shifted positions in a series of emergency cases dealing with how Covid-19 crowd restrictions applied to churches and synagogues. Before liberal Justice Ruth Bader Ginsburg died, the court upheld those restrictions. Once Barrett was in place, it began striking most of them down.
A little more than a year later, Barrett joined her conservative colleagues in overturning Roe v. Wade and significantly expanding Americans’ rights under the Second Amendment.
Last summer, she was one of six justices who voted to grant Trump sweeping immunity from criminal prosecution for official actions – though she did write a concurring opinion suggesting she thought the case could have been decided more narrowly in Trump’s favor.
Barrett voted with the court’s two most conservative justices – Thomas and Alito – more than 80% of the time in the term that ended last year, according to data compiled by the Empirical SCOTUS blog. She was slightly more likely to side with Roberts and Kavanaugh, two conservatives who are often viewed as sitting at the court’s ideological center. Roberts in particular has also faced sharp scorn from the right in recent years, even though he remains a reliable vote for conservative outcomes.
By comparison, Barrett voted with Justice Sonia Sotomayor, the court’s senior liberal, less than 70% of the time.
Both during oral arguments and in her opinions, Barrett often displays a penchant for delving into procedural issues. Among the conservative wing, she has appeared the most concerned about use of the court’s emergency docket to decide sweeping questions with national implications.
In one of the court’s first significant early opinions this year, Barrett joined a mix of liberals and conservatives in backing a death row inmate in Oklahoma who the Republican attorney general said was entitled to a new trial in light of withheld evidence. But she moved to the right of Kavanaugh and Roberts in that case, saying that she would have sent the matter back to a lower court for further consideration rather than throwing out the conviction.
But there have other recent examples in which Barrett has veered to the left. Barrett, joined by three liberals, partially dissented in a decision Tuesday about the Environmental Protection Agency’s ability to police sewage that can flow into the Pacific Ocean after San Francisco experiences heavy rainstorms.
Hiram Sasser, executive general counsel for First Liberty Institute, a group that has brought successful religious appeals to the Supreme Court, noted that the foreign aid case was in a very preliminary posture.
“It’s hard to read into procedural decisions where someone is going to be on the substantive part of the issue,” Sasser told CNN.
Sasser recalled that his group suffered an initial setback at the Supreme Court when it was representing Joe Kennedy, a high school football coach who lost his job after leading prayers on the 50-yard line after games. The court initially turned away Kennedy’s appeal.
In 2022, when the case was ultimately decided, Kennedy won with a 6-3 majority that included both Barrett and Roberts.
“We overturned a 50-year-old precedent in a landmark win, but it started off with what was a technical, procedural loss,” he said. “I wouldn’t forecast anything other than what President Trump just learned is exactly what we learned in the Coach Kennedy case: He’s got four votes.”
That means to get a majority, Sasser noted, Trump “only needs one more.”
