Rule of Law

Barrett Beginning to Chart Own Path on Divided Supreme Court

Amy Coney Barrett is showing signs of carving out her own lane after four terms on the US Supreme Court even as she remains a reliable conservative vote in the most high-profile cases involving guns, religion, and abortion.

This year Barrett, 52, joined fellow conservatives in undoing a Trump-era ban on bump stocks, and chipping away at the power of federal agencies that culminated with a blockbuster ruling overturning the 40-year administrative law doctrine known as Chevron deference.

In other areas she’s staked out more moderate positions. At the end of the just-completed term Barrett sided with her three liberal colleagues and authored the dissent opinion against the court’s decision to invalidate a major air pollution rule. And she similarly wrote for her and two of the liberal justices in arguing the majority was wrong to limit the scope of criminal laws used to prosecute Jan. 6 defendants.

Barrett’s most notable project is her effort to clarify how to properly engage in originalism, the constitutional method embraced by conservative to try to suss out the original meaning of the founding document.

Thomas Berry, a legal fellow at the libertarian Cato Institute, said he suspects Barrett is trying to shore up the doctrine in the face of greater academic and public scrutiny, both of originalism and the court itself.

“It matters that the court does this right and that their opinions are convincing to the public,” Berry said.

Overturning Roe

Donald Trump’s third and final appointment to the Supreme Court, Barrett replaced liberal icon Ruth Bader Ginsburg in 2020 and within two years delivered for conservatives in overturning the constitutional abortion rights established in Roe v. Wade.

The “headline of her career is that she was the decisive vote to overturn Roe,” said Emily Martin, the chief program officer for the National Women’s Law Center in referencing the court’s landmark decision in Dobbs v. Jackson Women’s Health Organization.

And overall, Barrett has continued to vote most often with her conservative colleagues.

In the just-completed term, Barrett agreed most often with Chief Justice John Roberts and Justice Brett Kavanaugh, two conservatives now considered to be the middle of the right-leaning court. She agreed with Roberts 88% of the time, and Kavanaugh 90%, according to statistics compiled by Adam Feldman and Jake Truscott. With each of the liberals, that agreement was below 70%.

In every big conservative win, from affirmative action to the administrative state, and guns to abortion, Barrett has sided with conservatives.

The bottom line is that Barrett is “the conservative justice that Donald Trump thought he was going to get when he picked her,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.

But Barrett’s agreement with the liberals this term—even if less frequent than with conservatives—was still higher than in the past, according to Feldman and Truscott.

In that Jan. 6 case, Fischer v. United States, Barrett took a stricter approach to interpreting the text of the criminal statute than the majority, written by Roberts, did.

Barrett’s dissent gave greater weight to the statute’s plain text, Berry said. Unlike the majority, “Barrett did not believe the scope of the law should be narrowed on the grounds that its apparent plain meaning was likely far broader than Congress intended,” Berry said.

And in the environmental case over the Biden administration’s air pollution rule, Ohio v. EPA, Barrett chided the majority for its “cherry-picked assortment of EPA statements.”

The court “grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record,” Barrett wrote.

Barrett also twice joined liberal Justice Sonia Sotomayor at public appearances, including a panel on how to “disagree better” at the National Governors Association in February.

History, Tradition

Even if the justices don’t see themselves split along political lines, they are divided on ideological ones. And one of the major disagreements between the two camps is originalism, the doctrine solidified by Barrett’s former boss, Justice Antonin Scalia, for whom she clerked.

Through originalism, conservatives have set “history and tradition” as their North Star in interpreting the Constitution.

But a debate is growing among conservatives over how to properly use that history and tradition, with Justice Clarence Thomas on one end and Barrett on the other.

Barrett’s attention into the “nitty-gritty of how originalism is supposed to work” is likely to have the biggest impact going forward, said Jacob Charles, a professor at the Pepperdine Caruso School of Law.

And while it’s an effort that started shortly after she took the bench, Barrett expanded and crystallized that effort in striking ways this past term, Berry said.

A handful of cases stand out.

In Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Barrett joined an unusual group of ideologically diverse justices to emphasize that the relevant history in determining the original meaning of a law isn’t just the time period surrounding its enactment. “Continuing tradition” can shed light on its meaning as well, Justice Elena Kagan wrote for the group of four justices.

And in the court’s latest Second Amendment case, Barrett clarified that while that tradition, which she called “postenactment history,” can be an important tool in interpreting the Constitution’s meaning, it has its limits. Tradition, standing alone, isn’t “dispositive,” she wrote in a concurring opinion.

Wydra said Barrett’s opinion in the trademark case Vidal v. Elster was also noteworthy. In it, she stressed that the “history and tradition” test isn’t always appropriate.

The majority, she said, “never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question. I would adopt a standard grounded in both trademark law and First Amendment precedent.”

Charles said there’s “long been a gap between academic originalism and judges’ originalism”—a gap he said the former constitutional law professor is seeking to close.

In doing so, Barrett has positioned herself as the “intellectual and theoretical leader on the court,” said University of Chicago law professor William Baude.

The scholarly debate is something Barrett is particularly well suited to given her years teaching constitutional law at the University of Notre Dame, Berry added.

Wydra said Barrett’s engagement on, and sometimes criticism of, originalism has been “pleasantly surprising.”

Wydra, whose group advocates for progressive outcomes based on the original meaning of the Constitution, said the issues Barrett is highlighting have potential implications for the Reconstruction Amendments. Those are the amendments passed in the wake of the Civil War, which many progressives see as seeking to rebalance constitutional protections, particularly for former slaves.

Cautious Jurist

Most of Barrett’s work on originalism has been through her separate concurring and dissenting opinions. Her majority opinions, though, have largely focused on statutory interpretation.

Barrett gets assigned “the less blockbuster cases” as a junior justice, Berry explained.

In those cases, she’s careful not to decide issues that she doesn’t have to, he said. “Generally she writes with caution.”

Baude pointed to the court’s 2021 ruling in Fulton v. City of Philadelphia, in which several of the conservative justices suggested overturning the court’s 1990 Employment Division v. Smith decision. In a split decision written by Scalia, the court said that generally applicable laws typically don’t violate the free exercise clause.

In her concurring opinion, joined by Kavanaugh, Barrett agreed that there were arguments to overrule Smith.

“As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination,” she wrote. “Yet what should replace Smith?” Barrett wondered.

Probing Questions

She often previews her cautiousness at oral arguments, by asking probing questions—another skill she likely brought over from her time as a professor, Berry said.

Though the second least talkative justice during oral arguments, according to Feldman and Truscott, her questions pack a lot of punch.

Often the justices are really talking to one another with their questions at oral argument, Berry said. “Barrett more than most is asking genuine questions from the bench,” which makes her one of the most difficult questioners.

In a challenge to Idaho’s strict abortion ban, Barrett told the state’s attorney that she was “kind of shocked actually because I thought your own expert had said below that these cases were covered.” She was referring to extreme cases where a woman’s fertility could be at risk because of complications early in pregnancy. “You’re hedging,” she later told Idaho’s attorney.

The court later dismissed the case. In her separate concurrence, Barrett wrote that “the shape of these cases has substantially shifted since” the justices got involved, noting the concessions Idaho’s attorney had made during oral arguments in response to her questions.

And in arguments over whether former President Donald Trump is immune from criminal prosecution, Barrett got concessions from Trump attorney John Sauer that the president isn’t immune from so-called private acts, including some of the act Special Counsel Jack Smith alleges Trump engaged in.

In a concurring opinion in Trump v. United States, Barrett went out of her way to explain why she thought at least some of that alleged conduct would not be “entitled to protection” from criminal prosecution.

Martin agrees that Barrett asks questions at oral arguments that suggests she’s seeking a more moderate result.

“But that doesn’t always match up with the majority decisions she joins,” Martin said.

She pointed to Barrett’s vote in the Dobbs decision, which she described as sweeping. That vote shows she’s not really any different from the other conservatives, Martin said.

“Barrett is trying to appear as moderate while not doing anything moderate or judicious,” Martin said.