In Defense of Amy Coney Barrett: A Republican Perspective
Barrett’s dissent in the Alien Enemies Act case focused on procedural nuances, not opposition to Trump’s agenda—a distinction critics have unfairly ignored.
The Supreme Court’s 5-4 decision in Trump v. J.G.G., which allowed deportations of alleged Tren de Aragua (TdA) members under the Alien Enemies Act (AEA), has ignited conservative outrage online—not over the ruling itself, but because Justice Amy Coney Barrett joined the three liberal justices in dissent. One search of her name on X reveals a score of people calling her a “traitor,” a “disgrace,” a “liberal white woman,” some even accusing her of being “compromised.” Yet this backlash misreads the legal intricacies of the case. Barrett’s dissent focused narrowly on how challenges to deportation under the AEA should proceed, not whether Trump had the authority to deport TdA members. Even the majority opinion avoided ruling on the AEA’s validity, instead mandating that detainees contest removal via habeas corpus petitions in their district of confinement. Barrett’s disagreement centered on procedural matters, not policy outcomes—a distinction conservatives have overlooked in their haste to condemn her.
THE MAJORITY’S PROCEDURAL FRAMEWORK
The Court’s majority opinion sidestepped whether Trump lawfully invoked the AEA, a statute the dissent points out has only been used in times of war. Instead, the majority ruled that detainees must challenge removals through habeas corpus petitions in the district where they are held, rather than make broader Administrative Procedure Act (APA) claims in the Washington D.C. federal courts (as the Plaintiffs in this case did).
What many conservatives online are missing is that the majority did affirm that Fifth Amendment due process rights apply to the alleged TdA members. This means that from now on, the suspected TdA members must be given notice of their removal and a reasonable opportunity to challenge their removal. The challenge must now be made through habeas corpus, not the APA.
BARRETT’S DISSENT: A FOCUS ON LEGAL PROCESS
Justice Sonia Sotomayor’s dissent accused the Trump administration of operating a “lawless regime” and warned of “irreparable harm” to the detainees. However, Barrett did not join in those parts of the dissent. Instead, she joined in a minimal fashion, choosing to dissent solely on procedural grounds while avoiding Sotomayor’s policy critiques. Barrett’s dissent hinged on only two points:
1- APA Availability for Deportation Challenges
The majority argued that habeas corpus is the sole avenue for AEA related claims, framing detainees’ challenges as contesting confinement. Challenges to confinement are brought through habeas corpus petitions, not through the APA. However, the dissent argued that the plaintiffs specifically stated that they aren’t challenging their confinement, but rather their removal. As evidence, they stated that if plaintiffs won their case, they wouldn’t be released from confinement, but would rather be prevented from being deported. Precedent cited by the dissent shows that in the past, challenges to deportation could be brought either through habeas corpus proceedings or through the APA.
2- A Restatement of Unanimous Agreement
All nine justices agreed that individuals facing deportation under the Alien Enemies Act are entitled to notice and an opportunity to challenge their removal—a principle that inherently calls into question the Trump administration’s decision to deport alleged TdA members without providing either. While the majority opinion cautiously avoided directly condemning these actions, its requirement for post-hoc habeas petitions implicitly acknowledged the administration’s procedural shortcomings. The dissent, however, refused to mince words. Joined by Barrett, it explicitly stated that the administration had violated due process by deporting detainees without notice or an opportunity to contest their deportation. This distinction—between the majority’s tacit critique and the dissent’s blunt rebuke—reflects a difference in rhetorical tone, not legal substance. Let me repeat—the Justices unanimously agreed that the administration violated due process rights in how they carried out these deportations.
CONSERVATIVE DISAGREEMENT: A FEATURE, NOT A BUG
The backlash against Barrett exposes a tension in conservative rhetoric. For decades, Republicans have decried “activist judges” who bend legal text to ideological ends. But when Barrett disagrees with other conservative justices, she faces accusations of betrayal.
In 2022, I collected data on the 2021-2022 Supreme Court term, and it revealed a striking pattern: liberal justices voted together 85% of the time, while conservative justices did so just 62% of the time. This disparity reflects the liberal justices’ “Living Constitution” approach to Constitutional interpretation versus conservative justices ’ diverse methodologies.
The liberal “Living Constitution” idea allows them to rule in whatever way aligns with the wishes of the Democratic party. Whereas, conservative justices interpret the Constitution in different ways—some conservatives emphasize strict textual adherence, others historical context, and others Court precedent. These differences in interpretation necessarily produce dissent among conservative justices—but such debates are inherent to a judiciary committed to principled interpretation, not blind loyalty to a party.
PRINCIPLE OVER PARTY
The backlash against Barrett highlights a tension within conservative circles: a demand for judicial adherence to legal text coupled with frustration when justices interpret that text in ways that diverge from partisan expectations. Barrett’s dissent raised questions about the appropriate mechanisms for contesting deportation under the Alien Enemies Act, not whether it was lawful for Trump to invoke the act. This case is a perfect example of the intricacies of Constitutional interpretation, which can lead to disagreements even among justices appointed by the same political party.
Conservatives should welcome such disagreements. A judiciary that prioritizes legal analysis over party ensures that even politically fraught decisions withstand scrutiny. Disagreement, when rooted in legal principle, isn’t betrayal—it’s the hallmark of a robust constitutional system.
