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Margin Of Error

Amy Coney Barrett’s Charm Offensive

Agents of the Texas National Guard struggle with a migrant man after he crossed across the Rio Grande river to reach the US side, as seen from Ciudad Juarez, Mexico on March 20, 2024.
Herika Martinez/AFP via Getty Images

Welcome to Margin of Error, a politics column from Tom Scocca, editor of the Indignity newsletter, examining the apocalyptic politics and coverage of Campaign 2024.

What happened with the Supreme Court and Texas and immigration this week was incredibly convoluted, although for a few hours on Tuesday it was simple and shocking. For those few hours, the news was that the Supreme Court had granted the State of Texas the power to ignore federal immigration law and existing federal proceedings, and instead to arrest and deport people under its own authority, following its new state law, SB4. 

Even that wasn't exactly so simple: Mexico immediately announced that it would not accept deportations from Texas, on the grounds that Mexico has no immigration policy agreements with Texas, because Texas is not a country. That provincial officials don't control international relations seemed like a basic principle of nationhood, but only three Supreme Court justices chose to say so, in dissent. 

Four members of the court, in reply, said nothing at all. Texas had passed an obviously unconstitutional law. Groups had immediately challenged the law in federal District Court. The District Court had blocked the law, pending those challenges, because it was obviously unconstitutional. The Fifth Circuit—the collection of saboteurs and bozos representing the fullest expression of the right-wing judicial takeover project—had unblocked the law (or blocked the lower court's blocking of the law). With the Fifth Circuit having acted, the four justices were simply allowing that action to take effect, a feat of judicial modesty for which they owed the public no explanation. 

It fell to Amy Coney Barrett, in a concurrence co-signed by Brett Kavanaugh, to come up with some reason why the right-wing majority was letting a state seize control of immigration from the federal government. The answer was strictly procedural: Barrett wrote that the Supreme Court was deferring to the lower court while expecting that the lower court should act quickly—meaning more quickly than the Fifth Circuit had been moving on the case. 

"If a decision does not issue soon, the applicants may return to this Court," Barrett wrote. Before the day was over, the Fifth Circuit had changed its mind; SB4 was on hold again, and Texas wasn't deporting anybody. 

What was anyone supposed to have learned about the state of the legal system from this? In a Bluesky post, Quinta Jurecic of Lawfare tried to calculate how many layers of negation had been applied to the case: 

A Bluesky post reading: "the fifth circuit dissolved an administrative stay it had imposed of the fifth circuit's administrative stay of a district court injunction of SB4. I think this is either quadruple or quintuple depending on how you count"
Quinta Jurecic, via Bluesky

Barrett had proposed something that had the surface qualities of judiciousness, smoothing over the actual chaos of the justice system. The plurality of the court may have announced, through silence, that anything was possible, but the most impossible outcome had been suspended. The Supreme Court looked more reasonable than the Fifth Circuit.

And Amy Coney Barrett was the voice of reasonableness. It seems to be a recurring role for Barrett. When the Court unanimously ordered Colorado to restore Donald Trump to the ballot, and the majority decided, over the objections of the minority, to gut the entire Insurrection Clause in the process, Barrett was the sole justice who tried to find something resembling middle ground. She agreed with the minority that the majority had gone too far, but she rebuked the minority for saying so: 

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home. 

The last time the country was in the volatile season of a presidential election—much deeper into the season, even, with general-election voting already underway—Amy Coney Barrett was scrambling over the not-yet-buried body of Ruth Bader Ginsburg to accept Donald Trump's nomination to take Ginsburg's seat, so that Trump and the Senate's then–Majority Leader Mitch McConnell could lock in 6–3 Republican control of the Court before voters took the White House and Senate away from them. And one election cycle later, here was Barrett performing pure smarm, chastising the losers in her power play because they were making the Supreme Court sound too political. 

The obvious model for this is Chief Justice John Roberts, who has successfully carried out a lifelong crusade to hollow out the Voting Rights Act and give rich people unlimited power to buy influence, all the while letting it be known that he cares deeply about the perception of the Court's integrity. Roberts has carried this performance to the point of sometimes joining the liberal wing to thwart the most self-destructive overreach by the right—or, since Barrett arrived, at least signing up on the losing side of a 5–4 victory for the rest of his team. 

There is also the fact that Barrett is, despite her relative (and strategically essential) young age, the mom on a wing of the court full of truculent man-babies. Samuel Alito can run around ranting conspiratorially about liberals and demanding deference from his critics, but someone has to mop up his mess and keep up the appearance that the court is in any way doing law. In the bargain, Barrett gets to scrub away at her own history as a walking, talking piece of partisan spoils, and to present herself as a figure apart from the far-right fringe, even as her vote guarantees Alito the unchecked power to, say, end abortion rights in America. 

And she's not alone in this project. Even as Barrett was scolding Sonia Sotomayor for her "stridency," the two justices were going around making joint appearances to promote civility. One day Sotomayor was joining in a concurrence accusing the court's right wing of protecting insurrectionists and saying that "[i]n a sensitive case crying out for judicial restraint, it abandons that course"; the next she was appearing side-by-side with one of the justices who voted to throw out Roe v. Wade, talking about the importance of "functioning together as a group."

Even the justice who warned the court would never be able to shake the "stench" of the Dobbs case can't stop trying to freshen its reputation. This court may never issue a right and just decision, but bargaining with Barrett could possibly, theoretically, make the injustice a little less rampant. Look at Tuesday, when the idea of procedural seemliness led the Fifth Circuit to change its mind, at least temporarily, about letting Texas declare war on migrants. But also, while looking at Tuesday, consider Iowa, which took the occasion to pass its own law declaring illegal reentry a state-level crime, to be enforced by state authorities. The Texas case paused, for the sake of judicial dignity. The movement behind it kept going.

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