Cruz’s sole citation for labeling her an “extremist” was a 2000 opinion she wrote for a three-judge panel striking down a New Jersey law banning so-called “partial birth abortions” — she called law so broad and vague that it could be read to ban almost any abortion at any stage....That is, Barry and Garth chose to publish a long analysis that had been written before the Supreme Court had issued what was now binding precedent. Instead of redoing their work and producing something that simply and duly followed the Supreme Court, they added a statement that worked to reinforce what the U.S. Supreme Court had done. The Supreme Court opinion had been 5-4, so this bolstering of the Supreme Court majority was significant.
As [the Third Circuit panel Maryanne Trump Barry, Samuel Alito, and Leonard Garth] were preparing their opinion... the Supreme Court... rul[ed] in Stenberg v Carhart, that [a similar Nebraska] statute was unconstitutional, first, because it lacked any exception “for the preservation of the… health of the mother” and, second, because, by its vagueness, it “imposes an undue burden on a woman’s ability” to choose “abortion itself”....
The panel could have simply affirmed the District Court ruling in light of the Supreme Court’s decision.... But Barry, joined by Garth, disagreed. “The majority opinion which follows,” Barry wrote at the outset of their opinion, “was in final form before the Supreme Court of the United States heard argument” in Stenberg. “Because nothing in that opinion is at odds with this Court’s opinion; because, in many respects, that opinion confirms and supports this Court’s conclusions and, in other respects, goes both further than and not as far as, this opinion, and, because we see no reason for further delay, we issue this opinion without change.”
Samuel Alito — who's now, of course, on the Supreme Court — wrote a concurring opinion calling Judge Barry's opinion "obsolete" and beyond the proper role of a lower court, which is "to follow and apply controlling Supreme Court precedent."