Roberts vs. Trump: Barely Disguised Contempt (Part 2)

Many readers are understandably upset with the Roberts Court's dismantling of the Voting Rights Act and other decisions viewed as politically and socially regressive. But there is another side of Roberts and his Court--perhaps just a slice--that shouldn't be overlooked. Some of the decisions exhibit a different character.

In Part 1, we looked at two majority opinions of Chief Justice John Roberts. One sided with President Trump and one did not. But in both, the Chief Justice's utter disdain for Trump's words and actions could not have been more clear. While upholding the travel ban of Trump's first administration [Trump v. Hawaii (2018)], Roberts contrasted Trump's expressed religious bigotry to the magnanimous and tolerant welcoming of other presidents toward minority religions. And when Roberts more recently wrote to invalidate Trump's tariffs [Learning Resources, Inc. v. Trump (2026)], he made clear how the tariffs seemed the result of fitful recklessness rather than thoughtful consideration. 

There are more than a few other decisions--in which Roberts either wrote for the majority or was part of it--where Trump's major policies or pet preferences were blunted or rejected outright. Sometimes the Roberts majority did so summarily. As in, "give me a break!"

But whether the Roberts-led majority did so summarily or with full deliberation and opinion, recalling a sample of these decisions lends a less monochromatic picture of the Chief Justice and, particularly, his Court's perspective on Trump. Consider these:

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In Moore v. Harper, Chief Justice Roberts wrote for a 6-3 majority--above dissenting Justices Thomas, Alito, and Gorsuch--to reject a pet constitutional theory advanced by Trump and his allies. The so-called "Independent Legislature Doctrine" would have barred any judicial review of any state legislative gerrymandering.

For example, that doctrine would prevent a state supreme court from ruling that the gerrymandering enacted by the state's legislature violated constitutional rights under the state's law. So, in this case, it would have prevented the North Carolina Supreme Court from ruling that the extremely partisan gerrymandering by North Carolina's Republican controlled state legislature violated the state constitution's guarantees of voting rights and equal protection. In short, the state legislature's gerrymandering would be final and the North Carolina Supreme Court could do nothing about it.

Trump and his allies' pet theory, which was advanced to help guarantee additional pro-Trump voting districts, was emphatically rejected by the Roberts majority. The Chief Justice, together with Justices Kavanaugh and Barrett, voted with the three liberal Justices--Sotomayor, Kagan, and Jackson. According to Roberts' opinion, despite the Supreme Court's hands-off approach to partisan gerrymandering by state legislatures, the state supreme courts are free to engage in the matter and prohibit such gerrymandering under their own state law.

The year before, a similar majority--again headed by Roberts, but before Justice Jackson replaced the retiring Stephen Breyer--had weighed in on another election-related matter against Trump and his allies.

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In Ritter v. Migliore, the 6-3 Roberts-led majority refused to invalidate certain mail-in ballots--another pet-target of Trump and his supporters. In this case, via a mere order without opinion, the Roberts majority, against the wishes of Trump allies, granted certiorari (i.e., accepted review) and summarily allowed the counting of timely mail-in ballots whose lone defect was their undated envelopes. Once again, Thomas, Alito, and Gorsuch were in dissent.

Last year, despite what seemed to some to be consistent Trump victories at the Court, Roberts-led majorities did stymie numerous efforts by the President, his administration, and his allies. Let's start with foreign affairs.

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In Department of State v. AIDS Vaccine Advocacy Coalition, in another unsigned order, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily sustained a decision of a lower federal court that had directed the Trump administration to pay nearly $2 billion to a global non-profit health organization. In effect, a 5-4 majority mandated that the Trump administration disburse the funds for work already performed in the international AIDS prevention programs. Thomas, Alito, and Gorsuch were in dissent again, this time joined by Justice Kavanaugh.

Also in 2025, the same Roberts-led 5-4 majority rebuffed Trump's claim to immunity from New York State's criminal proceedings against him.

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In Trump v. New York, the then re-elected but not yet re-inaugurated Trump sought to expand the presidential immunity that the Court had recognized the year before in Trump v. U.S. The Court should go further, Trump argued, and recognize immunity for a president-elect--particularly against state court proceedings here. But again, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily rejected Trump's request and allowed the New York proceedings to continue regarding Trump's multiple state convictions for business fraud. Also again, Thomas, Alito and Gorsuch, joined by Kavanaugh, dissented.

[Footnote: I trust you don't take it seriously when those same dissenting Justices--in cases where they like what the states are doing--insist that the Court should defer to the states and allow the states to do what the states think is best. You don't, do you? They certainly don't advocate deference when they don't like what a state is doing.]

A few years earlier, Roberts had authored an opinion for the Court to reject another Trump argument against state criminal proceedings. This case involved Trump during his presidency.

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In Trump v. Vance, during his first term, the president's lawyers made several arguments for immunizing Trump against state grand jury subpoenas. The chief executive of the national government, they argued, should be shielded from bothersome state proceedings; that allowing state investigations of a president would subject him to harassment by any number of states; that a president is too busy to be distracted by state proceedings; etc. The Roberts majority rejected all the arguments and refused to recognize any broad immunity for a president from state process. A president could challenge a faulty state subpoena just like anyone else. But that's it.

Not surprisingly, Justices Thomas and Alito supported Trump and dissented. Moreover, in a concurring opinion, Justice Kavanaugh, joined by Gorsuch, argued that the Court should require a more demanding level of justification for a state subpoena against a president before it can be approved. The Roberts majority declined to do that.

[Footnote: Same as above. You don't really take seriously the dissenters' "we should defer to the states" argument in other cases, do you?]

And here's a more recent case of Trump versus a state from the end of last year. The decision was another major loss for the administration.

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In Trump v. Illinois, the president--against the will of the Governor of Illinois and Mayor of Chicago--sought to activate the state's national guard. Trump claimed the power to do so. His lawyers argued that Trump has such power based both on the inherent constitutional authority of the office of the presidency, and on federal statutes providing for the protection of federal personnel and property. The Roberts-led majority, in response an emergency application brought by Trump, disagreed.

A five-Justice majority--Roberts, the three liberals, and Barrett--joined in an unsigned order rejecting Trump's claim that he could deploy the Illinois national guard to respond to an "invasion or a rebellion or danger of rebellion" in Chicago. That is, against large gatherings in Chicago protesting against Trump's immigration policies and, specifically, the tactics of ICE (Immigration and Customs Enforcement) agents in the city.

The majority held that the Trump administration failed to show that activating the national guard was necessary. Together with Justice Kavanaugh who wrote a separate opinion, the majority upheld the lower court's order halting Trump's actions.

Not surprisingly, Thomas, Alito, and Gorsuch dissented. They argued, among other things, that the president might have inherent constitutional authority to deploy a state's national guard under circumstances such as in this case. The Court, according to them, should have deferred to the judgment of the president--especially in his emergency application.

[Footnote: Same as above. "Defer-to-the-states" principle apparently applies only when the Justices advocating it like what the states are doing.]

In another immigration-related decision earlier last year, A.A.R.P. v. Trump, the Roberts-led majority put rebuffed Trump's deportation policy that elevated brutal efficiency over the barest of fair treatment.

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As part of Trump's policy of removing non-citizens who he claimed were part of a violent Venezuelan gang, he ordered that any Venezuelan citizen (over 14) could be “apprehended, restrained, secured, and removed" under the 1798 Alien Enemies Act. In fact, they were being sent to a hellish maximum-security prison in El Salvador. After winding its way to the Supreme Court, the emergency application of Venezuelan detainees was granted. 

The Roberts-led 7-2 majority, in an unsigned per curiam opinion, ruled that the non-citizens were entitled, as a matter of constitutional due process, to some meaningful opportunity to challenge their removal. According to that majority, the bare notice that was being provided to the Venezuelans, lacking any useful information and only delivered the day before deportation--a description the Trump administration did not deny--“surely does not pass muster.” 

In an opinion by Alito, he and Thomas dissented. Amidst technical, legal arguments, they evinced--[What can I say?]--as little sympathy for the hardship of the immigrants as the Trump administration. The majority was clearly wrong, Alito argued, because the Court didn't have jurisdiction to rule on this emergency application under the procedural posture of the case. Moreover, he labelled the petition for emergency due process relief an "extraordinary demand." 

Whatever the dissenters doubts about the procedural merits of the case, there is no doubt that here, as in other cases thus far identified, Chief Justice Roberts and his majorities were again displaying, at best, impatience with Trump and his policies.

Two more cases. In both of these, the "defer-to-the-states" dissenters did side with the interests of the respective states. But in these cases, the states involved had policies hostile to abortion--a hostility the dissenters favored. So you would certainly expect the dissenters to vote the way they did.

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In the 2024 case of Oklahoma v. Department of Health and Human Service, the Roberts-led majority supported a pro-abortion position of the Biden administration. The majority rejected the strict hostility towards reproductive choice that has been a hallmark of Trump's presidencies and of his state allies.

In a bare unsigned order, the six-Justice majority--Roberts, the three liberals, Barrett and Kavanaugh--sided with the federal government's decision to deny to Oklahoma several million in funding because that state prohibited abortion referrals and even family-planning counseling. Oklahoma's strict anti-abortion policy contravened the federal Public Health Service Act. In a similarly bare unsigned order, Thomas, Alito, and Gorsuch voted to give Trump-friendly Oklahoma the funds.

As many readers surely know, the Court just issued another abortion-friendly order this month. Once again, the Roberts-led majority sided with reproductive rights and ruled against another Trump-friendly, abortion-hostile state.

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In Danco Laboratories v. Louisiana, the state had sought to stop any shipment of mifepristone into the state. The appeals court below granted Louisiana's request to stop shipments of the abortion-producing medication while litigation was pending. It reasoned that Louisiana was ultimately likely to succeed.

But in an unsigned order of a 7-2 majority, the Supreme Court blocked that ruling. The Chief Justice, the three liberals, Kavanaugh, Barrett, and, this time, with Gorsuch as well, sided with the mifepristone manufacturers and, of course with the women in Louisiana who order it. In ordering the shipments to continue, the majority were apparently not so sure that Louisiana would ultimately prevail.

As one would certainly expect, Justices Thomas and Alito dissented. In his separate opinion, Thomas argued that the 19th century Comstock Act, which prohibits all interstate distribution of contraception and abortion materials, should still be enforced. In his opinion, Alito argued that the interstate mailings of mifepristone effectively undermine the Court's 2022 decision in Dobbs v. Jackson which overruled Roe v. Wade. But the Roberts-led majority seemingly had no interest in expanding the effect of the Trump-instigated Dobbs decision--let alone reviving the Comstock Act.

That's all for now. Did I cherry pick decisions to make my point? Guilty. Did I identify a very limited number of Roberts-led decisions that happened to have a common thread? Yes, guilty.

But the point is that the Roberts Court has not been uniformly supportive of Trump. No, not at all. It might seem that way to some who abhor some of the pro-Trump decisions. To be sure, at times it does seem as though the Court has been issuing one pro-Trump decision after another. Especially after some that might seem shockingly contradictory to established constitutional principles.

But a candid, dispassionate review of the Court's decisions shows that the Court has not been unidirectional when it comes to Trump, his administration, and his policies. And regarding the particular purpose here, Chief Justice Roberts and his majorities have actually handed Trump some very important defeats, and they have increasingly shown an impatience and even utter contempt for this president and his policies.

The Voting Rights Decision--A Fait Accompli

Let's look at the latest voting rights decision before returning to Roberts vs. Trump.

There is understandable dismay and outright disgust with last week's voting rights decision--mine included. But any shock and surprise about Louisiana v. Callais, whether from the dissenting Justices or liberal commentators, seems a bit forced. Anyone following the persistent direction of the Court's decisions on racial preferences over the last 40 years had to know that this was inevitable.

In short, the Court decided that the Voting Rights Act does not require and, more critically, constitutional Equal Protection does prohibit the consideration of race in drawing congressional districts. And it makes no difference if race is taken into account for the benign purpose of protecting the voting rights of minorities. Nope. Creating or preserving Black-majority districts is discrimination on the basis of race against non-Black voters.

 

At least since 1986, with conservative appointees of Presidents Nixon and Reagan taking control of the Court, the predominant view among the Justices has been a discomfort, if not outright hostility toward so-called "reverse discrimination." Race-conscious policies, even to redress the lasting effects of the historic discrimination against Blacks in this country, have been viewed as invidious--even if sometimes tolerated--discrimination on the basis of race.

The protection of "insular and discrete minorities" had previously been understood to be the primary purpose of the Constitution's post-Civil War guarantee of equal rights. The elimination of government-approved mistreatment of minorities was recognized as the motivating policy underlying the Equal Protection Clause of the 14th Amendment. The most celebrated footnote in Supreme Court history--Justice Harlan Stone's footnote 4 in the Court's 1938 decision in U. S. v. Carolene Products Co.--articulated that rubric. 

Accordingly, the protection of historically oppressed minorities remained established constitutional law for a while. But later, ideologically conservative Republican appointees began to revise the aim of equal protection and the concept of constitutionally repugnant discrimination. 

In its 1986 decision in Wygant v. Jackson Bd. of Educ., with Nixon and Reagan appointees now dominating the Court, a bare majority of the Justices invalidated a program that provided preferential protection against layoffs to Black employees. Those minority workers had been recently hired to remedy past discrimination in hiring. But this benign racial preference was viewed as unconstitutional discrimination against white employees. The Court made clear that protection of the white majority would be considered just as compelling as the protection of the racial minority--regardless of which group had suffered the historic discrimination that led to the Equal Protection Clause.

Within a short time thereafter, retirements from the Court gave Reagan the opportunity to fill vacancies with like-minded appointments. Especially notable were Reagan's elevation of William Rehnquist to replace the retired Chief Justice Warren Burger, and his appointment of Antonin Scalia to fill Rehnquist's former position. Like Reagan, these two appointees were mostly unsympathetic to the civil rights emphasis on protecting Black Americans.

Let's remember--as some have recalled to bring realism to the nostalgia over Ronald Reagan--that shortly after his election, he opposed extending the Voting Rights Act and sought to dilute its provisions until he was politically embarrassed to do otherwise. Remember also that he actually began his presidential campaign in Philadelphia, Mississippi where three civil rights workers had been murdered, and he used the occasion to exalt states' rights and to criticize the civil rights laws as an insult to the South. And just as revolting (in my humble view)--in a reversal of Nixon and Carter policy--Reagan supported federal support for "Christian" colleges and universities that openly practiced racial segregation. (The Supreme Court ruled against his position and upheld the Nixon-Carter policy in Bob Jones Univ. v. United States, 1983.) 

Reagan's selections of Rehnquist and Scalia were fitting. Rehnquist, when a law clerk at the Supreme Court, wrote a memo in support of the "separate but equal" doctrine and in opposition to the ultimate decision in Brown v. Board of Education to end racial segregation. And while on the Court himself, he was the lone dissenting vote in the Bob Jones Univ. case to restore federal support for racially segregated colleges and universities.

As for Scalia, it is difficult, if not impossible, to find a single vote in which he supported civil rights for Blacks. Whether the cases before the Court involved prosecutors removing Blacks from juries, or universities trying to diversify racially to remedy past discrimination in admissions, or any other civil rights-related issue, Scalia consistently sided against the interests of Black Americans.

So, it was not at all surprising what the Court ruled, with Chief Justice Rehnquist and Justice Scalia in the majority, in its 1989 decision in City of Richmond v. J. A. Croson Co. As in Wygant, three years earlier, the Court invalidated another remedial racial preference program. Over the three liberal Justices in dissent, the majority held that the program to set aside 30% of the city's construction contracts to minority-owned businesses violated Equal Protection. The Court reinforced its Wygant decision that any racial classification--whether it discriminated against minorities or sought to redress that historic discrimination--was constitutionally suspect and nearly impossible to justify.

From there to the Court's rulings against affirmative action in school admissions was simply a natural progression. In 2003, in a pair of decisions--Gratz v. Bollinger and Grutter v. Bollinger--the Court severely limited the benign consideration of race in college and university admissions. By a vote of 6-3 in Gratz, the Court invalidated an admissions program where race seemed to be a dispositive factor. In the Court's words, nearly every “underrepresented minority” was admitted. And by a bare 5-4 vote in Grutter, the Court upheld an admissions program where race was a single factor among many in a very "individualized review" of each applicant. The four dissenters condemned the admission of--in the words of the major dissenting opinion by Chief Justice Rehnquist--"less qualified underrepresented minorities," whatever the purported purpose.

For the next several years, the Court seemed ready to end racial considerations in admissions policies entirely. It did so unqualifiedly in 2023 in SFFA v. Harvard and Univ. of North Carolina. The plaintiffs--felicitously self-named "Students for Fair Admissions"--did not seek fair admissions at all in the case, but only an end to any consideration of race. (Not athletes, not legacies, not donor families, etc., etc.) The 6-3 majority spoke through the opinion of Chief Justice John Roberts--who, by the way, was a law clerk for Rehnquist, and then worked in the Reagan administration DOJ, where he advocated against the Voting Rights Act. (Not surprisingly then, ten years before SFFA in the 2013 case of Shelby County v. Holder, he wrote for the 5-4 majority to invalidate a key section of the Voting Rights Act. The required federal "pre-clearance," before election laws could be changed in sections of the country that had historically practiced voting rights discrimination, was now, according to Roberts, unconstitutionally outdated.)

In SFFA, Roberts' argument for the majority against all racial preferences--whether to redress historic discrimination or to insure diversity of the student body--was the Constitution's supposed mandate for "color blindness." As Roberts explained it, "Eliminating racial discrimination means eliminating all of it...The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." 

The three dissenters--liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--argued that race consciousness had actually advanced the Constitution's guarantee of equality. They also reminded the majority that the very purpose of the Equal Protection Clause was to protect the newly freed Black minority, not exactly color blindness.

Now, three years later, last week in Louisiana v. Callais, the very same majority and minority have made the very same arguments.

For the same majority: the consideration of race in creating voting districts violates Equal Protection, even for the benign purpose of remedying past discrimination. Preferring one race necessarily disfavors another. Discrimination can't mean one thing when it hurts Black voters, and something else when it disfavors whites. Elimination of racial discrimination means eliminating all of it.

For the same dissenters: race consciousness to create and preserve majority Black voting districts helps to insure the Constitution's guarantee of equality in voting. That guarantee, foremost, was the protection of the historically discriminated against Black minority. Prohibiting any consideration of race in redistricting hinders, not bolsters, constitutional equality.

The fact is, regardless of how devastating and distressing this most recent voting rights decision might be to those who actually support the voting rights laws--again, me included--it's no surprise at all. Anyone who has followed the direction of the Court for the past few decades could have predicted the majority and dissenting opinions. Even written them.

Louisiana v. Callais was the preordained consequence of the relentless whittling away of the civil rights era. If the commitment of that era was to eliminate, as much as possible, the remnants of this country's savage mistreatment of Black persons, the commitment now is to treat race as though the remnants of that savage mistreatment are now all gone. There are consequences of a 6-3 politically conservative Republican majority. And there are consequences of that growing body of decisions that has been pointing one way for at least 40 years.

We will now witness the aftermath of Louisiana v. Callais. Like the decision itself, the aftermath shouldn't be a surprise.

Roberts vs. Trump: Barely Disguised Contempt

Olivier Douliery/AFP via Getty Images

Linda Greenhouse, the Pulitzer Prize winning former Supreme Court reporter for the New York Times, recently put it this way: the Chief Justice’s “vexation with Mr. Trump verges on acute concern.” [Linda Greenhouse, Roberts Is Losing Patience With Trump, NY Times, Feb. 24, 2026.]

Indeed, the “gratuitous” paragraph Greenhouse excerpted, from Roberts’ majority opinion rejecting Trump’s asserted tariff power, reveals at least “vexation.” Here are several such lines from that paragraph and the preceding one:

[T]he President imposed a 25% duty on most Canadian and Mexican imports and a 10% duty on most Chinese imports. [He also] imposed a duty “on all imports from all trading partners” of at least 10%. Dozens of nations faced higher rates. And these tariffs applied notwithstanding any extant trade agreements.

One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20%. One month later, he removed a statutory exemption for Chinese goods under $800. Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. The very next day, he increased the rate further still, to 125%...The President has also shifted sets of goods into and out of the reciprocal tariff framework (exempting from reciprocal tariffs beef, fruits, coffee, tea, spices, and some fertilizers). And he has issued a variety of other adjustments. See, e.g., extending “the suspension of heightened reciprocal tariffs” on Chinese imports.

[Learning Resources, Inc. v. Trump (2026).]

The obvious--whether actually gratuitous--point is that this is capricious conduct of an erratic man.

But the tariffs case was hardly the first time that Chief Justice Roberts has shown “acute concern” about Trump. A notable illustration from back in Trump’s first term was Roberts’ opinion for the Court in the Muslim Ban—I mean “Travel Ban”—case. While his majority opinion upheld Trump’s immigration restrictions at issue in that case, Roberts took pains to point out that his opinion was not an endorsement of “a particular President,” but about “the authority of the Presidency itself.”

Even then, Roberts highlighted the argument that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.” And though he emphasized that the constitutional question in the case was "not whether to denounce the statements,” Roberts’ denunciation was clear.

In a few paragraphs, perhaps as “gratuitous” as the ones in the Tariffs case, Roberts recapped many of Trump’s ugly statements about Muslims. Here’s part of what Roberts included in his opinion:

[W]hile a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”…Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right” …[O]ne of the President’s campaign advisers explained that when the President “first announced [the first proposed ban], he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally’…[A]fter issuing [the first replacement order], the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct” …[Thereafter,] the President retweeted links to three anti-Muslim propaganda videos.

[Trump v. Hawaii (2018).]

Roberts immediately contrasted Trump’s conduct with that of other presidents who used their power to speak inspiringly to the Nation “to espouse the principles of religious freedom and tolerance on which this Nation was founded.” Notably, he gave examples of presidents, beginning with Washington, who spoke out against bigotry against Jews and Muslims. But then, pointedly, he remarked that “Presidents [have] performed unevenly in living up to those inspiring words.” Trump, anyone?

Beyond his apparent contempt for the man now occupying the White House for a second time, Roberts has also written opinions for the Court or voted in support of such opinions that rejected Trump’s pet policies or his defenses in cases against him. Despite the conventional wisdom otherwise, Roberts and his Court have actually stymied Trump and his administration numerous times in recent years, in addition to the tariffs case.

We’ll take a look at some of these in the next post. 

Amy Coney Barrett (Part 2)--"Non-Hack"

Source: Elizabeth Frantz/NY Times

“The Supreme Court’s second-newest justice is proving herself to be a non-hack —to the increasing consternation of MAGA.”

That's Matt Ford, Associate Editor of the politically liberal The New Republic magazine.

But it's not just liberals who have nice things to say about Justice Amy Coney Barrett. Edward Whelan, former law clerk to Justice Antonin Scalia, holder of the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, and one of the nation's foremost conservative legal commentators had this to say: "She’s a careful, precise thinker, and she’s been thrust into this very volatile environment.” 

Jodi Kantor, who has reported behind-the-scenes stories about the Supreme Court for the New York Times, compared Barrett favorably to others on the Court: "Justice Barrett has favored a more deliberate approach than some of her colleagues."

These views of Amy Coney Barrett are far more common among the less-partisan observers of the Court than those of the uber-MAGA crowd, some of which were included in the previous post. (See Amy Coney Barrett (Part 1)--"Rattled Law Professor.")

Again, the facts. Here is my graph from the previous post that shows how Justice Barrett has been voting:

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In the 29 ideologically laden cases last term--i.e., those clearly identifiable as "politically conservative" versus "politically liberal" among the 64 full-appeals decided--Barrett was unmistakably on the conservative side of the Court. No doubt about that when her 62% conservative voting is contrasted with the 7% and 10% conservative records of Justices Jackson and Sotomayor, respectively. Of course, her record is also a far cry from the 93% conservative voting of both Justices Thomas and Alito. So yes, it's clear to see why she would be a disappointment to the partisans who expected her to be or hoped her to be far more ideologically disposed.

But worse than that for the most die-hard Trump supporters is her record in cases directly involving Trump himself or his policies. Let's take a look at Barrett's record, as well as those of her colleagues, in those cases.

There were 22 such cases. These included 16 that were decided on an emergency basis--i.e., the so-called "shadow docket," where there were no arguments held and no full briefing. Just a petition for relief by a party unhappy with a decision by a lower court, and a vote in conference by the Justices to grant or deny the request. 

In fact, most of the cases directly involving Trump or his policies were decided that way last term. And most of the time, the Court's majority gave absolutely no reason for its decision. As the headline from one of veteran Court reporter Adam Liptak's column summarized the situation: “Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why.” (NY Times, July 16, 2025.) 

Here's what the voting looked like in all those 22 "Trump Cases"--full appeals and "emergency" decisions: 

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As was clear from the previous graph showing Justice Barrett's 62% politically conservative voting in the full appeals, her 68% voting in favor of Trump and his policies, as depicted above, is hardly the record of a political liberal. Certainly not when contrasted with the 0% and 5% pro-Trump voting of Justices Jackson and Sotomayor.

But neither is Barrett's record even close to the 100%--yes, 100%--pro-Trump voting of both Justices Thomas and Alito. No, Justice Barrett's voting in the cases directly involving Trump or his policies--full appeals plus emergency decisions--is not a record of a blind partisan. Not a record of a blind Trump loyalist. Hence, the ire of the uber-Trumpists and the respect of just about everyone else. Even cautious optimism among some liberals.

By way of illustration, Barrett's record this year included voting in a 5-4 majority to order the Trump administration to unfreeze nearly $2 billion in foreign-aid reimbursements, in another 5-4 majority refusing to recognize Trump's claimed presidential-elect immunity, in a 6-3 majority to preclude presidential hiring and firing of certain "lesser" executive officials, and in dissent with the three liberal Justices to uphold broad authority of the Environmental Protection agency. 

Lest it be thought that Justice Barrett's voting last term could have been an aberration. Perhaps it was a particular mix of cases that resulted in her voting "pro-Trump" much less than other Republican appointees on the Court. It turns out that Barrett's record in cases involving Trump or his policies has consistently been much less pro-Trump than some of her colleagues.

Indeed, eminent Supreme Court scholar Lee Epstein, who probably tracks the voting records of the Justices more closely than anyone else, has compiled all the votes on former and current President Trump since Justice Barrett was appointed to the Court--by Trump--in 2020. Here's what Lee Epstein and her colleagues found: 

(click to enlarge for a better view) 

According to the Epstein & Colleagues calculations, Barrett has voted pro-Trump less than any other Republican appointee. Her 59% record since she joined the Court is not only just above 50-50 pro-Trump, but it is a far cry from the 94% for Justice Alito and the 88% for Justices Gorsuch and Thomas.

To be sure, her voting is also a far cry from the heavily anti-Trump records of Justices Sotomayor, Jackson, and Kagan. But still, Barrett's record is hardly one to be applauded by the MAGA crowd or even the more moderate Trump partisans. 

A "rattled law professor," "Amy commie Barrett," "evil," and "a disgusting fraud." Or perhaps a "non-hack," "careful, precise thinker," one who "favor[s] a more deliberate approach than some of her colleagues."

Well, the facts of Justice Barrett's voting record demonstrate that she is certainly a political conservative. She wouldn't be confused with a liberal--let alone a communist. Except by the most ideologically or politically fanatical out there.

But neither does Justice Barrett's record confirm what many political liberals feared she would be. Nor does it confirm the view adhered to by many political liberals that she remains hopelessly tied to the right wing of the Court. Conservative, yes. But also a Justice who, like Justices Sandra Day O'Connor and Anthony Kennedy before her--or even John Marshall Harlan II before them--has a strong, confident, independent streak. She has shown herself to be unafraid and unhesitant to break from her usual or expected ideological allies on some of the most politically-charged cases before the Court.

Amy Coney Barrett (Part 1)--"Rattled Law Professor"

Source: Allison Robbert/NY Times

The complete line: "She’s a rattled law professor with her head up her a**."

By the way, that's from a gentleman named Mike Davis, speaking on Steve Bannon's podcast. This Davis fellow actually served as the head counsel for nominations for the Republican Chair of the U.S. Senate Judiciary Committee. Shortly before that, he had urged that Neal Gorsuch be appointed to the Supreme Court, and then he was hired by Gorsuch to be his law clerk.

Davis & Gorsuch, hmm!

[In all fairness to Justice Gorsuch, Davis only lasted, for whatever reason, a few months in Gorsuch's chambers.]

Davis is hardly the only supposed "conservative"--i.e., here, referring to a Trump die hard--who's unhappy with Justice Barrett.

There's the oh-so dignified "Catturd"--his trademark--Phillip Buchanan, who posted this: "Amy Commie Barrett—she’s been an ungrateful, backstabbing POS since day one."  So she's a backstabber, an ingrate, and....a communist? Well, she's each of those because she doesn't vote in support of everything and anything that Trump and his administration try to do. Oh, also, she's "an Absolute disgusting fraud."

Then there's the social-media "influencer," Michael Cernovich, famous among other reasons for calling date rape "a liberal fiction." He summarised his thoughtful appraisal of Justice Barrett this way: "She is evil." So more than rattled or ungrateful or even disgusting. She's actually evil!

Mark Levin, the FOX News host, was a bit softer in his assessment: "The power has gone to her head."

Then there's Trump confidant and travel companion, Laura Loomer, who was among those who figured that their disappointment was to be expected: "Amy Coney Barrett was a DEI [diversity, equity, and inclusion] appointee." 

And according to numerous sources, Trump himself has been complaining about Barrett--as well as his other appointees for not marching in lockstep. In fact, he's expressed his fury about Leonard Leo, the leader of the Federalist Society. Trump apparently blames Leo for his advice on judicial appointees. Trump has ranted that Leo is "a real sleazebag...who in his own way probably hates America."

But back to Barrett.

Beyond all this unhinged commentary--along with the vicious and vile outpourings of agreement by the commentators' fans--is Barrett's record. Here is how she, as well as her colleagues, have been voting:

 (click to enlarge for a better view) 

This graph represents the Justices' voting and the Court's decisions in all 29 "conservative" versus "liberal" cases last term. That is, the 29 cases which--after examining all 64 full appeals decided in the Court's most recent term--could be identified as having an issue with a clear politically "conservative" versus politically "liberal" side.*

 *[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021).

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.]   

As the graph shows, Justice Barrett can hardly be viewed as a liberal. Compare her voting record to that of the two unquestionably liberal Justices, Jackson and Sotomayor. They supported the conservative position in only 7% and 10% of these cases, repectively. Barrett did so much more regularly and, indeed, more than half of the time; 62% in these close, divided cases. 

To be sure, Barrett's voting record is a far cry from that of the staunchly conservative Justices Thomas and Alito--both at 93% conservative. Apparently, that's the kind of voting her right-wing critics wanted and what many of them, including Trump, were expecting. 

Beyond that, what is perhaps the most telling aspect of Justice Barrett's record, at least for the fury within the Trump camp about her, is her voting in those cases specifically involving Trump, or involving policies especially advanced by him and his administration. Think immigration, firings without cause, environmental regulations, witholding funds from states that don't embrace his policies, etc. 

In the next post, we'll focus on Barrett's and her colleagues' voting in those cases. 

[For those of you experiencing deja vu--Yes, Yogi, all over again--I have written about Justice Barrett previously, and about aspects of her voting record at that point. See Part1: Amy Coney Barrett; Part 2; and Part 3.]