Supreme Court Justice Amy Coney Barrett said Thursday she doesn’t think of herself as a “swing justice,” distancing herself from a label that court watchers have sometimes ascribed to her.
“A swing justice — that makes it sound like you sort of are swinging back and forth, and you can’t make up your mind,” said Barrett, the most junior conservative justice.
“And that is not how my approach to judging,” she told the crowd gathered at the Johns Hopkins University Bloomberg Center for the inaugural SCOTUSBlog Summit: On The Merits.
President Trump’s third nominee to the court, Barrett has emerged as a key vote in several of the administration’s emergency appeals.
This summer, when the administration brought its pushback against diversity efforts at the National Institutes of Health (NIH), Barrett found herself in the middle.
Four of her conservative colleagues fully sided with the administration, while the three liberal justices and Chief Justice John Roberts fully sided against Trump.
Barrett’s split vote — allowing the administration to cancel grants but keeping a block on NIH guidance documents — dictated the result.
“People might agree or disagree with either the philosophy or the result that I reach in applying that philosophy in an individual case, but I don’t think of myself as a swing justice,” she told the crowd Thursday.
When she has sided against the administration in emergency cases, it has sparked intense online backlash from the president’s supporters, including a high-profile ruling in a deportation case this spring.
“I’ve had to just learn to tune it out,” Barrett said when asked how she handles criticism, adding she has no social media.
Barrett’s remarks came during a wide-ranging conversation with U.S. Circuit Judge Patrick Bumatay about her new book, “Listening to the Law: Reflections on the Court and Constitution,” that spanned her childhood in New Orleans to her decisionmaking on the high court.
At one point, she was asked why the justices often decline to describe their reasons for recusing themselves from certain cases.
Justices Elena Kagan and Ketanji Brown Jackson have begun providing brief explanations, but Barrett and her other colleagues have not followed suit.
Barrett’s recusal decisions have particularly come into the limelight after she didn’t participate in a major case this term involving the constitutionality of publicly funded religious charter schools, leaving the court with a 4-4 deadlock.
She has never publicly explained the recusal, but court watchers speculate it stems from her friendship with a professor who advised the school at the center of the case.
On Thursday, the justice said judges recuse for two reasons: actual bias and the appearance of bias.
Barrett acknowledged that an explanation for the first category, like a financial conflict, wouldn’t necessarily be an issue and is oftentimes already readily apparent. However, she stressed she would then need to provide explanations across-the-board.
The latter category is a “tricky standard,” she said, but could extend to anything from personal relationships to “deeply held convictions that one can’t put aside.”
Barrett noted that, like many judges, she and her family members have had pizzas they did not order delivered to their homes — a common intimidation tactic meant to show that the judges’ home addresses are known to a potentially bad actor.
U.S. District Judge Esther Salas, a federal judge whose son was killed by a lawyer who once appeared before her, has said that judges often receive pizzas in her son’s name to create additional fear.
Experiences like that, Barrett said, shape the way she approaches recusals too.
“People can be mad at me for decisions or lash out at me for the way I decide a case, whether it’s by recusing a case or casting a vote that they think is wrong,” Barrett said.
“But I have to think too about, like, well, is it really something I want to do, to identify — if that’s the reason — to identify that person and then put that person in that position?”