Barrett Is No Souter
Critics of Justice Amy Coney Barrett say that she has failed to live up to expectations to be the kind of good conservative judge that conservatives have demanded for decades.
Some have even argued that she may turn out to be David Souter — a George HW Bush appointee to the U.S. Supreme Court who disappointed constitutionalists and conservatives alike.
Well, that’s not true. The appointment of Associate Justice Amy Coney Barrett to the Supreme Court of the United States has solidly anchored the high court in a judicial philosophy grounded in a simple but profound premise: the Constitution must be interpreted according to its original public meaning at the time of enactment, and statutes must be read as written.
Throughout her tenure on the court, Justice Barrett has proven herself to be a dedicated constitutionalist. Even when her specific analytical path diverges from what some of us movement conservatives might desire, her overall work demonstrates a deep, principled commitment to the rule of law.
Consequently, her presence on the high court has repeatedly served as the decisive weight separating a disciplined constitutional government from policy-driven liberal activism.
Constitutionalism requires a judge to act as a neutral referee rather than a super-legislator. Liberal jurisprudence often views the Constitution as a living document, allowing judges to update its meaning to solve contemporary social problems.
In contrast, Barrett’s seeks to ensure that policy decisions are left to the elected branches of government. While legal observers can find individual cases where she reached a different conclusion than her conservative colleagues, her structural impact is undeniable. But this is true of practically every member of the Court.
Here’s the takeaway: her role on the Supreme Court has consistently halted progressive overreach, restoring the structural safeguards designed by the Framers.
The first major manifestation of this appeared in Roman Catholic Diocese of Brooklyn v. Cuomo (2020). Arriving on the Court in the midst of a global pandemic, Barrett faced a critical test regarding religious liberty.
Executive orders had placed strict attendance caps on houses of worship while allowing secular businesses to operate with greater flexibility.
Barrett provided the crucial fifth vote to grant an injunction against these bigoted restrictions. This decision was a vital victory for constitutional government over suppressed First Amendment rights, ensuring that religious exercise could not be relegated to second-class status even during a pandemic.
Barrett's fidelity to original text was even more consequential in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), a landmark Second Amendment case.
For decades, liberal lower courts had utilized a freewheeling, two-step balancing test to uphold sweeping firearm restrictions, effectively prioritizing anti-firearm policy preferences over explicit constitutional text.
Barrett joined the majority to establish that the government must justify its gun regulations by demonstrating they are consistent with the nation's historical tradition of firearm regulation.
By stripping courts of the power to ignore an enumerated right – also known as the 2nd Amendment, Barrett helped restore a constitutional framework that protects individual liberty (gun ownership rights) from progressive legislative overreach.
The separation of powers found an equally staunch defender in Barrett during the high-stakes battle over student loan forgiveness in Biden v. Nebraska, 600 U.S. 477 (2022).
The Biden administration attempted to bypass Congress to wipe out billions of dollars in student debt by stretching the meaning of the HEROES Act. The Higher Education Relief Opportunities for Students Act is a 2003 federal law that grants the U.S. secretary of education the authority to waive or modify statutory and regulatory requirements for federal student financial aid programs during times of national emergency, military operation, or war.
Biden took this law to places it had never gone before and naturally his administration was challenged.
Yet again, Barrett joined the majority in striking down the plan under the Major Questions Doctrine. In her insightful concurring opinion, she grounded the doctrine firmly in textualism, arguing that context matters and that a reasonable speaker would not interpret a narrow statutory provision as a grant of sweeping, un-democratically enacted authority.
Her vote preserved Congress’s exclusive power of the purse.
This commitment to rolling back administrative overreach was further cemented in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). For 40 years, the Chevron doctrine [See: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)] forced courts to defer to executive agencies' interpretations of ambiguous laws, fueling the growth of an unaccountable bureaucracy.
Barrett voted to overturn Chevron, returning the duty of statutory interpretation squarely to the judiciary where Article III places it. This pivot re-established a constitutional government where laws are interpreted by judges rather than politically insulated agency officials.
Barrett's dedication to originalism also reshaped voting rights in Brnovich v. Democratic National Committee, 594 U.S. 647 (2021).
Progressive litigants sought to transform Section 2 of the Voting Rights Act into a tool for micro-managing state election laws, which would have federalized local voting procedures under a disparate-impact standard.
Barrett joined the conservative majority to protect the Constitution, affirming that states retain their traditional authority to regulate the time, place, and manner of elections, provided regulations do not impose unequal opportunities.
Finally, Barrett’s originalist approach reached its logical apex in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022).
For half a century, the conservative legal movement sought to overturn Roe v. Wade 410 U.S. 113 (1973), a decision widely criticized by originalists as an exercise in raw judicial power completely detached from constitutional text.
Barrett’s vote to return the issue of abortion regulation to the people and their elected representatives marked the ultimate triumph of constitutional government over liberal judicial activism demonstrating yet again that she could be counted on to stand up for the Constitution.
Ultimately, Justice Amy Coney Barrett's record shows that she's no Justice Souter. While individual cases may occasionally spark tactical disagreements among originalists, her broader record demonstrates a steadfast refusal to substitute personal policy preferences for constitutional text.
By serving as the decisive vote in these six pivotal cases, she has consistently checked administrative overreach, defended explicit constitutional liberties, and returned policymaking power to the democratic process.
For conservative legal minds, her tenure reinforces a fundamental truth: a constitutional government is defined not by a court that delivers politically convenient outcomes, but by a court that possesses the discipline to leave the Constitution exactly as it was written.
Clearly, she's no Justice David Souter.
Horace Cooper previously served as counsel to House Majority Leader Richard K. Armey and is an author and legal commentator who has appeared on Fox News, MSNBC, and CNN, as well as in a variety of print publications. Read more of Horace Cooper Insider articles — Click Here Now.