AYESHA RASCOE, HOST:
Last week, Justice Amy Coney Barrett wrote the Supreme Court's opinion in favor of a truck driver who wants to sue a medical marijuana company for deceiving him about the contents of their product. Barrett sided with the court's liberal wing and not for the first time. When Barrett was nominated to replace Ruth Bader Ginsburg in 2020 by President Trump, she was expected to be a solid conservative pick. But in the last four years, she's occasionally voted with her liberal colleagues on some major issues.
Leah Litman is a law professor at the University of Michigan, co-host of the "Strict Scrutiny" podcast and author of the book "Lawless," out next month, and is now with us. Thank you for joining us.
LEAH LITMAN: Thanks for having me.
RASCOE: Let's go back to Amy Coney Barrett's confirmation hearings in 2020. What did people think of her as a nominee?
LITMAN: When she was nominated, I think people expected that she was going to be a pretty dyed-in-the-wool conservative when it came to social policy issues like abortion or LGBTQ equality. In some ways, those were the issues that people knew the most about her. And that's in part because she had signed a newspaper ad indicating that Roe v Wade was barbaric. She had also voted to uphold two abortion restrictions when she was a judge on the U.S. Court of Appeals for the Seventh Circuit.
But then on the host of other issues, her paper record was much more thin. She had only been a judge on the Court of Appeals for a few years, and even as an academic, she had not written on that many issues that make their way to the Supreme Court. And I think people just attributed to her the views of the other Republican appointees.
RASCOE: So where has she surprised court watchers?
LITMAN: I think it's actually in a pretty narrow subset of cases where she has surprised court watchers. She still has voted with the Republican appointees on many important administrative law cases, such as, for example, the lawfulness of President Biden's plan to cancel student debt. But it's on these issues of structural constitutional law that really go to the core of what kind of government we have - whether, for example, federal law is supreme; whether, for example, we have the separation of powers or, instead, the president can decline to spend money that Congress has appropriated. She has been more open minded and voted together with the Chief Justice and the three Democratic appointees.
RASCOE: There was backlash last month from Trump allies when Barrett voted to reject the administration's attempt to freeze nearly $2 billion in foreign aid, how would you characterize that backlash that she faced?
LITMAN: The backlash was extreme and intense. Almost immediately, you had people within the Republican Party, conservative legal movement, labeling her as a DEI hire, some people going so far as to say Republican presidents just should never nominate women to be judges or justices because they cannot be trusted. And so there was this deep-seated sense that she had somehow betrayed the cause or project or party or even person that had nominated her to the Supreme Court.
RASCOE: Justices straying from the party of the president who nominated them - that's nothing new, right? And it's almost by design because they have lifetime appointments. Is it less common to have justices straying from the party that nominated them?
LITMAN: I think it is absolutely less common, at least for Republican appointees, and it used to be more common. We probably remember Justice Stevens, John Paul Stevens. He was appointed by a Republican president. He often voted together with the Democratic appointees, same with Justice David Souter. But the conservative legal movement kind of perfected this selection process, in part by relying on the federalist society, where they would get to know people before nominating them to the federal bench to ensure that they knew how they were going to rule.
But by mentioning Justices Stevens and Souter, I do not in any way mean to suggest Justice Barrett is drifting left or becoming moderate. It is just on these very extreme questions that the Trump administration or Donald Trump or the state of Texas have thrust onto the Supreme Court's docket where that has given her pause. It is more so a sign of just how extreme some of the asks have become of the Supreme Court.
RASCOE: That's Leah Litman. She's a law professor at the University of Michigan and co-host of the "Strict Scrutiny" podcast. Her new book, "Lawless," is out next month. Thanks so much for being with us.
LITMAN: Thanks for having me.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
