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For many years, Ruth Bader Ginsburg was a professor and an advocate. She had written and litigated extensively on many constitutional law issues, including sex discrimination and abortion. When Ginsburg became a circuit court judge, and then a Supreme Court justice, no one would have expected her to abandon all of her views on constitutional law. Of course she insisted during her confirmation hearing that she would approach issues with an open mind. But to no one’s surprise, Ginsburg’s constitutional jurisprudence largely reflected her scholarly agenda. I think much the same can be said of Professors Scalia, Breyer, Kagan, and other academics who became Justices. Indeed, these professors were nominated based in part on their scholarly writing.
Yet, I cannot recall any Justice so clearly stating that her judicial opinion was equivalent with her scholarly opinion–that was until I read 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 SupremeCourt 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 weird 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 represented 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.
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