Et tu, Amy Coney Barrett?

January 25, 2024

By Brian Lonergan

The Supreme Court’s recent directive that Texas may not erect razor wire barriers to halt illegal immigration into the state is a troubling sign that the High Court may not be our last, best hope to preserve the nation and the Constitution after all. If anything, it is evidence that certain justices of the Court are joining the groupthink in Washington that is hastening the decline of America.

The terse order from the Court in DHS v. Texas gave no reasoning, and leaves mostly unanswered questions. If the federal government has supremacy over the states on immigration, what is to be done when the federal government refuses to enforce the immigration laws? What recourse does a state like Texas have when the absentee federal landlord allows the state to be overrun with foreign nationals, destroying private property, incurring massive expenses and committing crimes against state residents? 

It wasn’t supposed to go this way. After the Trump Administration placed three new justices on the Court, all with conservative bona fides from the Federalist Society, it was widely assumed that the highest court in the land would swing dramatically to the right. So prevalent was this belief that liberal members of Congress were openly threatening to pack the Court as a corrective measure.

While it’s true that the Court has angered the left with a number of decisions, it hasn’t endeared itself to conservatives, either. While Justices Clarence Thomas and Samuel Alito have been stalwart originalists, the three Trump appointees—Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—have been inconsistent at best.

This type of flip-flopping has been a source of frustration for conservative Court observers for decades. Justices nominated by liberal presidents seem to get more left-leaning as they go forward. Nominees of conservative presidents are more of a mystery box. For every ardent originalist like Thomas or the late Antonin Scalia, there are too many Earl Warrens, David Souters and John Robertses. That is, justices nominated by Republican presidents who came in with originalist track records and gradually evolved into unpredictable jurists who too often side with the Court’s “living, breathing Constitution” wing.

Justice Coney Barrett is the latest example of this phenomenon. She came to the Court with impressive credentials, a stellar performance in her confirmation hearings and a record of adherence to the Constitution as a federal circuit court judge, particularly on immigration.   

In Cook County v. Wolf, she dissented from a ruling that temporarily halted the public charge rule. A migrant solvency rule with teeth is essential to ensuring that the United States requires immigrants to be self-sufficient, rather than allowing them to become public charges dependent on government assistance. And Justice Coney Barrett seemed to understand this.

In Alverange-Flores v. Sessions, Justice Barrett sided with an immigration judge who didn’t find a Salvadoran citizen’s petition for protection in the U.S. to be credible, a victory for those seeking to rid the asylum system of rampant fraud.

Yet despite this record, Justice Coney Barrett was the deciding vote for the 5-4 majority in DHS v. Texas, which handed the Biden Administration a major victory in its anti-borders agenda that has crippled Texas and other states being pummeled by a relentless stream of illegal aliens.

“I love the United States and I love the United States Constitution,” Coney Barrett said at her Rose Garden introduction as Supreme Court nominee in 2020. Speaking of her mentor, Justice Scalia, she said, “His judicial philosophy is mine, too. A judge must apply the law as written.”

Justice Coney Barrett may very well believe these things, but they are wildly at odds with her decision in the Texas razor wire matter. While the federal government has supremacy on immigration, the current executive of the federal government is brazenly subverting the immigration enforcement measures Congress set down as law. Texas, as a sovereign state, also has the inherent authority to protect its territory in a way congruent with federal law. It is inconceivable that Justice Scalia, who held America and its Constitution sacred, would look at the state of the country as a result of current immigration policy and rule as Coney Barrett did.

With the Biden Administration’s wrecking ball immigration policies and Congress largely ineffective as a result of partisanship and gridlock, the Supreme Court was believed by many to be the last voice of reason in America’s ruling class. If Justice Coney Barrett’s recent defection is more of a new direction than an aberration, then permanent Washington will soon be completely unmoored from its Constitutional foundations and its responsibilities to its citizens.

Brian Lonergan is director of communications at the Immigration Reform Law Institute (IRLI) in Washington, D.C, and co-host of IRLI’s “No Border, No Country” podcast.

Also published at The Center Square, January 25, 2024.