Justice Barrett and Affirmative Motion

In Grutter v. Bollinger (2003), Justice O’Connor wrote, “We count on that 25 years from now, the usage of racial preferences will now not be essential.” I by no means took this sentence–or actually something Justice O’Connor wrote–very severely. And even when she was critical about that time, nobody who joined her majority opinion stays on the Court docket. But, within the New York Occasions, Justin Driver means that the quarter-century countdown might present affirmative motion with a six-year keep of execution. For the explanations Ed Whelan explains, I discover this risk extraordinarily unlikely.

But, there was one paragraph in Driver’s column that caught my eye. He means that Justice Barrett’s adopted youngsters might have an effect on her views on affirmative motion:

Justice Barrett might also be much less reflexively hostile to affirmative motion than is extensively assumed. Is it at the very least doable that her expertise adopting and elevating two Black youngsters has made her extra intimately attuned to the ugly persistence of racial discrimination than a few of her colleagues? Though this notion might initially sound reductive, refined empirical scholarship has demonstrated that judges who’ve daughters are extra receptive to girls’s rights claims than judges who’ve solely sons. It might hardly be astonishing if an identical, maybe unconscious, dynamic utilized to jurists with Black youngsters and claims of racial justice. The truth is, Prof. Maya Sen, one of many authors of the research on judges and their youngsters, mentioned in an interview that adopting a baby might have an effect on a jurist’s worldview.

I’ve made this precise level in a number of Supreme Court docket time period previews. To my information, Choose Barrett was by no means known as upon to determine any instances involving racial preferences. And, as greatest as I can recall, her authorized scholarship didn’t contact on this difficulty. However Barrett did speak about race throughout her affirmation listening to. She recalled how she mentioned George Floyd’s loss of life along with her youngsters.

“Senator, as you may think, on condition that I’ve two Black youngsters, that was very, very private for my household,” Barrett informed Senate Minority Whip Dick Durbin (D-Unwell.), who had requested whether or not she had seen the video. The decide defined that whereas her husband had taken her sons on a tenting journey that weekend, she and Vivian “wept collectively in my room” as outrage over Floyd’s loss of life mushroomed and consumed the nation.

Barrett famous that Floyd’s loss of life and the following unrest had been additionally troublesome for her 10-year-old daughter, Juliette, who’s white.

“I needed to attempt to clarify a few of this to them,” she informed the committee. “I imply my youngsters — thus far of their lives — have had the good thing about rising up in a cocoon the place they haven’t but skilled hatred or violence. And for Vivian to know that there can be a threat to her brother or the son she may need in the future of that type of brutality has been an ongoing dialog.”

I flagged this document in 2021 after Barrett GVR’d a George-Floyd-like case. On the time, I wrote:

Justices usually are not automatons. These kinds of points can have a bearing on their rulings. Certainly, I am undecided that Justice Barrett will vote with the Court docket’s conservative on affirmative motion. The three-3-3 Court docket remains to be forming.

Right here, Driver appears to echo my level.

Furthermore, Barrett was an instructional for a decade. Range and inclusion contact each side of our career. Based on her Senate Judiciary Committee questionnaire, throughout her time at Notre Dame, she served on the Admissions Committee from 2003-2006. Little question she gained some insights into how racial preferences function in increased training. (I served on the Admissions Committee as soon as, and solely as soon as, because of my views on affirmative motion.)

Barrett’s views on College students for Honest Admission could also be affected by her private experiences. Do not presume she strains up with Clarence Thomas.

Now could be it correct for me and Driver to attract these inferences? To make sure, we’re not performing on any inside info, apart from Barrett’s public statements and her well-known private story. However a lot of what Supreme Court docket pundits do is novice psychoanalysis. We take bits and items of knowledge that we all know, and use that info to make predictions about how a Justice will determine a case. That course of will also be retrospective as properly. We take bits and items of knowledge that we all know to clarify why a Justice determined a case the best way he did.

Wanting having a sit-down with a Justice, or reviewing their papers, we’re caught with the written opinion. To fill this void, punditry speculates. Take it for what you paid.