This term, the spotlight among both conservative and liberal Court watchers has been on Amy Coney Barrett’s not infrequent breaks from her fellow Republican-appointed justices. Liberal commentators have been quick to praise her, especially in contrast to those colleagues. Those encomiums bring to mind what Laurence Silberman (for whom Barrett once clerked) dubbed the “Greenhouse effect.” That’s the tendency of Court commentariat (represented by the then-New York Times Court reporter Linda Greenhouse) to apportion praise and criticism in the hopes of nudging justices leftward. This tactic appeared to work on Justices Stevens, Blackmun, and Souter, who all drifted to the left during their years on the Court.

　　Conservatives have an additional worry. Their concern is that, unlike Trump’s other appointees, Neil Gorsuch and Brett Kavanaugh, Barrett had a short track record as a judge and therefore was, in the words of one commentator, “a piece of unfinished wood” liable to be shaped by Elena Kagan. This kind of concern is also not new. Conservatives have suggested before that Republicans should appoint as justices only those who have been tested and shown resistance to swerving left.

　　Liberal hopes and conservative fears about Barrett, however, are misplaced. It is true that she is becoming increasingly confident as she enters her fourth year on the Court. But her decisions are not dictated by ideology but rather by intellect. She is the only former law professor among the originalist-oriented judges and spent much of her time as an academic working on interpretive theory—originalism in constitutional law and textualism in constitutional law. She sees it as part of her judicial duty to make the decisions following these theories as principled and rigorous as possible. In trying to work the law pure, she will naturally depart from some of the rationales and results of her colleagues. Justice Barrett deserves praise for charting her own course.

　　Originalism

　　Even before this term, Barrett has written concurrences to raise doubts about the originalist methodology of opinions. In Bruen, which struck down a New York gun licensing scheme under the Second Amendment, she questioned the time frame for the historical evidence that Justice Thomas used to interpret the Amendment. She expressed doubt about the probative value of post-ratification evidence and relatedly whether the relevant evidence came from 1791 when the Second Amendment was passed or 1868 when it was incorporated against the states. These concerns reflect academic debates of long-standing; Barrett was quite right to note that the Court would need to resolve them in subsequent cases.

　　In this term’s case about gun rights she penned an even more pointed concurrence, contrasting the two ways the Court has used history to understand constitutional rights. One is determining simply the meaning of words. The other is understanding the “contours of the right”—that is, the scope of the right. She then argues that the latter use raises two issues. The first is the problem of expected applications. Historical evidence about how the Framers expected a provision to be applied does not necessarily show its contours because the Framers may have been mistaken about the full scope of what they wrote. The second is the issue of generality: at what level of generality should one take evidence? For instance, if the evidence shows that the Founding generation disarmed burglars despite the Second Amendment, can we generalize and hold that all felons or all criminals are liable to disarmament?

　　Again, these are central questions for originalism, even if I would put some of them slightly differently. I do not think there is much difference between the meaning of a right and its expected contours. The meaning is constituted by its contours. And while I agree that the expected applications do not constitute the meaning, I would emphasize more than Barrett that they provide evidence of the meaning—strong evidence if they point to a consistent principle. In particular, consistent expected applications help show the meaning of political and moral terms. These terms are ultimately conventional in a way that scientific or factual terms may not be. It is thus harder to claim those using them were mistaken, because there is no external reality against which they may be tested. We might have different intuitions about how a term should be cashed out, but that may well be because we have different moral and political principles than those that have informed the meaning of law to begin with. For instance, it may be that those who wrote the First Amendment thought of speech as something that necessarily attempted some appeal to reason and thus excluded pornography from the protections of the First Amendment.

　　But nothing in her discussion suggests Barrett is swerving left. It is far more likely that she is simply trying to get originalist methodology right. In Vidal v. Elster, for example, Barrett, concurring in the judgment, attacked an abstract method of constitutional interpretation—history and tradition—that she believed Justice Thomas’s opinion employed. The majority had relied on the history of trademark law’s content-based distinctions to uphold trademark’s current content-based restriction on using the name of a living person as part of a trademark. Barrett, in my view, properly doubts that a history and tradition test is superior to a test rooted in functional principles, such as one that looks at whether restrictions on trademark would undermine the purposes of the First Amendment. She correctly notes that both are judge-made tests. While some conservative academics have endorsed history and tradition as an interpretive method, history or tradition divorced from the text of the enactment is not originalism.

　　Barrett is to be congratulated for policing the boundaries of originalism. To be sure, I think an originalist argument might well be made for the Court’s result in Vidal, because the First Amendment at the Founding was conceived as a species of property right, and no one at the time had the right to another’s name without their consent, because that is also a species of personal property. But, as Barrett also correctly noted, the majority opinion was not originalist.

　　Textualism

　　Barrett is also concerned with reconciling the Supreme Court’s opinions on statutory interpretation with textualism—an interpretive stance she defended as a law professor. Notably, the major questions doctrine—a canon that requires statutory clarity before the Court will deem that Congress has delegated major powers to an agency (where major is defined as powers that would have serious consequences for the economy or federalism)—has been criticized as inconsistent with reading the text fairly without a thumb on the scale.

　　Barrett’s approach should remind us that any legal movement like originalism cannot be sustained only by judges but depends on a larger legal culture.

　　In Biden v. Nebraska, in which the Court applied the doctrine to hold that the Biden administration lacked authority to cancel student loans, Barrett wrote a concurrence arguing that the major questions doctrine was consistent with textualism. She contended that context is relevant to textualism and that in the context of delegation, one would expect Congress to be clear about extraordinary powers. She gives the homey example from real life of “make sure the children have fun” as a command given to a babysitter. No one would think that this mandate by itself authorized the babysitter to take an expensive multi-day excursion out of town. Similarly, one would expect Congress to be clear when it gave an agency power to make over sections of the economy or subordinate traditional state responsibilities to the federal government.

　　That is not to say that Barrett is necessarily right that the major questions doctrine cannot be defended as a substantive as opposed to textualist canon, as Gorsuch had done in his own concurrence in West Virginia v. EPA, or that there are other ways of defending it textually, just that her intervention is again an example of her trying to work the law pure. Whether she is right or not, this is exactly what a Supreme Court justice should be doing: trying to make her interpretive approach transparently consistent, no matter what the case.

　　Similarly, this term in Fischer v. United States, Barrett dissented from an opinion joined by her five conservative colleagues that held that a statute that prohibited people from “otherwise” obstructing a proceeding should be read to limit that kind of obstruction to impairing the availability or integrity of a document in a proceeding, because it was part of a provision that focused on documents, not proceedings generally. Barrett objected to the majority’s use of canons of construction which she thought inapposite and thus wrongly narrowed the plain meaning of the text. This again was a debate about the proper contours of a legal method, not any indication of an ideological division.

　　Passive Virtues

　　Another theme in Barrett’s reservations about some of her colleagues’ reasoning is that she does not want to reach out to decide cases when it is unnecessary to do so or where the record has not been clarified. In Fulton v. Philadelphia she declined to join Justices Thomas, Alito, and Gorsuch in overruling Employment Division v. Smith, the case that held that generally applicable laws do not violate the free exercise clause even if they burden religion. The case could be decided on narrower grounds, and, in any event, she had not yet decided what should replace Smith, if it were overruled.

　　This term she concurred in dismissing Moyle v. United States, a case about the potential conflict of a federal statute on emergency medical care with an Idaho law forbidding abortion. She argued that the Court should not decide the case, because both the federal government and Idaho had changed their positions at oral argument, leading to the possibility that the conflict could be reconciled.

　　Barrett also sometimes departs from some of her conservative colleagues in creating high barriers to standing—the necessary connection Courts require between plaintiffs and the injury they claim. For instance, this term in Murthy v. Missouri, unlike Justices Thomas, Alito, and Gorsuch, she found that plaintiffs complaining that the government had encouraged social media to take down their posts had not shown a sufficient causal connection between their deplatforming and their government’s requests. Indeed, in my view, she would have been wise to employ the same approach in Moody v. NetChoice, in which she joined a section of the majority opinion that expounded on the First Amendment that was unnecessary to decide the case.

　　Still, in most cases where it is relevant, Barrett pays attention to what Alexander Bickel labeled the “passive virtues.” Bickel thought that by avoiding broad constitutional decisions and deciding cases only when the issues had been made clear and concrete, the Court maintained its legitimacy. As shown by her joining the majority opinion in Dobbs overruling Roe v. Wade, Barrett is willing to overrule decisions and move the law toward originalism, but she may well think that the passive virtues are all the more necessary to maintain judicial legitimacy that is restoring the law in a politically polarized world. Moreover, as someone who was a law professor and not a judge for most of her career, Barrett recognizes that the justices stand on the shoulders of other parts of the legal profession, particularly law professors and amicus brief writers. By forcing the Court to slow down she gains more information from these sources for a better decision.

　　This approach should remind us that any legal movement like originalism cannot be sustained only by judges but depends on a larger legal culture. Through both her theorizing and incrementalism, Barrett is helping to summon that culture into being. Commentators are correct that Barrett is forging her own path. But her actions do not signal an ideological shift but rather an effort to make the law more coherent and legitimate. She is embracing the role of the scholar-judge, a position that great justices like Joseph Story and Antonin Scalia also once occupied to the great benefit of legal stability and coherence.