Federal Courts and Nominations

Barrett moves Supreme Court to the right, but cautiously

Justice Amy Coney Barrett moved the Supreme Court’s center of gravity further to the right this term, but not as quickly or as dramatically as her supporters had hoped or her detractors had feared.

Whether that reflects a rookie justice’s first-term caution or a more-ingrained inclination to moderation and small steps will determine her place among the court’s sometimes splintered six-member conservative majority.

It seems likely that Barrett’s replacement of the late Justice Ruth Bader Ginsburg played a key role in the court’s accepting the abortion and gun cases for argument in the fall. The petitions presented issues that the court in the past has found unworthy of review.

For now, the inaugural voyage of Barrett, chosen by President Donald Trump, seems more in line with the approaches of Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, who have shown they are content to steer the court to the right more incrementally.

“I think when the headlines are written on this term, the role of those three justices is really going to be front and center,” said Kannon Shanmugam, a Washington lawyer who argues cases frequently before the court.

The notion that the conservative justices are divided on picking their fights was reinforced Friday, when the court announced additional cases for the coming term. It sidestepped another suit that presented the question of whether anti-discrimination laws must give way to religious convictions.

But it takes four justices to grant a case a hearing, meaning that none of the other conservatives joined.

If the right wing of the court is sometimes fragmented, the term’s decision-making ended Thursday with a burst of partisan acrimony over voting rights that held true to the court’s 6-to-3 ideological divide.

The court’s conservatives, all nominated by Republican presidents, interpreted a key section of the Voting Rights Act in a way that will make it much harder to challenge a spate of strict new voting regulations enacted across the country by Republican-led state legislatures.

The court’s three liberals, all nominated by Democratic presidents, united behind a fierce dissent written by Justice Elena Kagan. “The majority writes its own set of rules,” Kagan wrote, accusing the majority of inhabiting “a law-free zone” unconnected to the act’s words or Congress’s intent.

Alito, the majority opinion’s author, in turn accused Kagan of employing “misdirection” and embarking on a “radical project” to empower federal courts at the expense of state legislatures.

But vitriolic volleys between the court’s two ideological wings were more of an exception to the term than the rule.

“Perhaps the most remarkable feature of this term was that the entire court seemed to go out of its way to find common ground,” said Gregory G. Garre, who for a time was solicitor general under President George W. Bush. “The term saw surprising consensus across ideological lines in high-profile cases.”

The court was unanimous in ruling against the NCAA and its prohibition on colleges offering generous academic-related perks to student-athletes. The justices found a narrow way to rule that Philadelphia must continue to allow a Catholic agency to participate in vetting potential foster-care parents even though it will not accept same-sex couples to be foster parents.

The court ruled, 8 to 1, that a school had gone too far in punishing a high school cheerleader for a profane, off-campus rant on social media, the first time in 50 years the court had sided with a student in a major First Amendment case.

And it disposed of the latest challenge to the Affordable Care Act, 7 to 2, choosing a path that even Thomas, who has twice before opposed the act, could join.

David Cole, the national legal director of the American Civil Liberties Union, presented a sunny review of the court’s term in a webinar with supporters this week.

“I think we at the ACLU can to some degree breathe a sigh of relief: It’s nowhere near as bad as people thought” it would be, he said.

He noted that in one case this term, the three liberals sided with the three Trump nominees to form a majority. “It just shows, you cannot write anyone off on this court at this point — with the possible exception of Justice Alito,” Cole said.

Some liberals say that such analysis strains to find the positive. Melissa Murray, a New York University law professor who reviews the court’s action in the podcast Strict Scrutiny, says she is “befuddled” by descriptions of the court as less ideological.

“I think this new majority is as conservative as predicted,” she said.

Elizabeth Wydra, the president of the liberal Constitutional Accountability Center, agreed.

“There are different methodologies and approaches to judging among the conservative justices — a fact reflected in some of the narrower decisions this term,” Wydra wrote in a review of the term. “In terms of substantive ideology, however, there is a clear six justice conservative majority.”

Although the result in the Philadelphia foster-care case was incremental, Wydra said, it sent a signal “that the court will continue to look favorably on religious liberty objections to laws that protect the rights of LGBTQ persons.”

It is on religion that Barrett has made the most noticeable impact in her eight months on the court. She changed how the court ruled on objections to pandemic-related restrictions on worship.

“Even in a pandemic, the Constitution cannot be put away and forgotten,” said the unsigned opinion that Barrett joined. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

Mark Rienzi, the president of the Becket Fund for Religious Liberty, celebrated another term “in which the court is broadly protective of religious liberty, often by supermajority or unanimity.”

Still, Barrett demurred in the Philadelphia case when others on the right wanted to strike a Supreme Court precedent that has been a target of lawyers representing religious groups. It says that the right to religious exercise is not violated by laws that apply equally to all, and was written by Justice Antonin Scalia, for whom Barrett clerked.

Barrett wrote separately, joined by Kavanaugh and liberal Justice Stephen G. Breyer, to say that although she questioned the precedent, there was nothing in the case presenting a reason to overrule it, “much less [suggesting] what should replace it.”

The former Notre Dame law professor has had an unprecedented introduction to the court. Because the Supreme Court is closed for pandemic-related reasons, she has never taken the bench with her new colleagues. All hearings were conducted via teleconference, and the justices did not meet in person for their private conferences until all had been vaccinated in the spring.

But she’s made an impression since her confirmation in October. “I think it’s very clear she’s a snappy writer . . . readable without being show-offy,” said lawyer Sarah Harris, who argues cases at the court and was at a U.S. Chamber of Commerce panel with Shanmugam to discuss the term.

Statistics show that Barrett and the other Trump nominees to the court — Gorsuch and Kavanaugh — were most frequently in the majority this term, along with Roberts.

In some ways, she has defied the predictions of Democratic senators and others. They portrayed her rushed nomination and confirmation before the election as providing a vote against the Affordable Care Act or to defend the president in post-election legal battles.

She was in the majority in the ACA case, although a decision that draws the vote of Thomas could hardly be called liberal. And she, Kavanaugh and Gorsuch did not object as the court turned aside the Trump-related election challenges that reached the Supreme Court.

The former president noticed.

“I am very disappointed. I fought very hard for them, but I was very disappointed with a number of their rulings,” Trump told Real America’s Voice network anchor David Brody last month, mentioning Kavanaugh and Barrett.

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