Josh Blackman has done what the movement’s sharpest advocates do: he counted the votes that the opinions do not carry. Writing in National Review, Blackman tallied Justice Barrett’s pattern on the interim docket — the emergency applications, the stays sought and denied, the certiorari petitions declined without note. The picture that emerges is not the portrait of a moderate. It is the portrait of a justice whose temperament defers where the movement’s own jurisprudence expects the hand to hold.
On the cases that produce opinions, Barrett has delivered. She joined the majority in Dobbs, which returned the question of life to the sovereign legislatures and affirmed that the created order is not subject to judicial invention. She wrote the plurality in Bruen, which confirmed that the Second Amendment is not a second-class right. She is a serious jurist, and her record on the merits is not in question. But the interim docket is where doctrinal victories become enforced order, and on that docket, Barrett more frequently than not declines to act. When circuit courts impose vaccine mandates on religious health-care workers, she votes to leave the mandate standing. When they block state laws protecting children from adult performances before minors, she declines to enjoin. When they order Catholic hospitals to provide gender-transition procedures, she denies the emergency stay. When they permit the shipment of chemical-abortion drugs into states that have banned them, she lets the lower court’s ruling stand. Blackman’s count is not a charge of disloyalty. It is a diagnosis of temperament on the one docket where temperament determines whether the Wall holds between the merits and the ground.
The Supreme Court, on January 22, 2024, in a five-to-four unsigned order, vacated the Fifth Circuit injunction that had prevented federal agents from cutting the concertina wire Texas had installed along the south bank of the Rio Grande near Eagle Pass. Justice Barrett voted with the majority. Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, dissented. The wire, placed at the direction of Governor Greg Abbott under Operation Lone Star, had funneled crossing attempts toward the port of entry; with the injunction dissolved, Border Patrol resumed cutting.
In the months that followed, the Eagle Pass sector continued to produce bodies. The Border Patrol logs record men, women, and children recovered from the same stretch of water where the wire had stood. The river at Eagle Pass in January runs cold — cold enough to produce cold-water shock within the first minutes of immersion. The swimmer inhales water before the body has time to cool. Involuntary gasping draws river water past the vocal cords and into the trachea. The diaphragm spasms. The swimmer goes under. Cold-water drowning in shallow-crossing rivers of this temperature class is not a matter of exhaustion or hypothermia; it is a matter of aspiration. The lungs fill. Consciousness ends in the convulsive seconds after the first involuntary breath. The body floats face-down or sinks, depending on air trapped in the clothing. Border Patrol recovers it downstream.
The medical examiner records the cause as freshwater drowning with contributing hypothermia. The manner of death is recorded as accident. In cases involving children, the examiner has documented bruising on the forearms consistent with attempts to grip a surface or another person before submersion. The youngest recovered in the sector that season was under five years old.
The man who enters the Rio Grande without the covenant of the household has crossed a boundary that the wire was built to enforce. He is outside the order — outside the wall, outside the jurisdiction of the blessing that the household confers on those who enter through its gate. The Court permitted the wire to be cut. The river does what the wire would have prevented. His drowning is the boundary confirming the trespass.
The children who drowned with him are at the crossing whose boundary they share. They are the evidence the boundary produces in the absence of the wall. The Court dissolved the injunction; the order permits the river to do its work. The interim docket is a ledger, and the ledger balances.