WASHINGTON – Three months before the Supreme Court ended a historic term in late June, Associate Justice Amy Coney Barrett – its newest conservative – asked Americans to keep an open mind as they passed judgment on the high court’s work.
“You should read the opinion and see, well, does this read like something that was purely results driven and designed to impose the policy preferences of the majority?” Barrett asked at the Ronald Reagan Presidential Foundation and Institute event. “Or does this read like it actually is an honest effort and persuasive effort – even if one you ultimately don’t agree with – to determine what the Constitution and precedent requires?”
After a term in which the court’s conservative majority overturned Roe v. Wade, set a tougher standard for assessing gun regulations and redrew the line separating church and state, Americans are having that debate. And the discussion inevitably leads back to Barrett herself – and her influence on the nation’s highest court.
Barrett, 50, replaced Associate Justice Ruth Bader Ginsburg, a progressive icon who died in 2020. The transition cemented the conservatives’ hold, giving them a 6-3 advantage for the first time in decades.
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“Her presence and her vote speak volumes,” said John Malcolm, vice president of the Institute for Constitutional Government at the conservative Heritage Foundation. “Obviously, Barrett was the complete opposite of where Ginsburg would have been.”
In the most closely watched case of the term that ended in June, Chief Justice John Roberts supported upholding Mississippi’s ban on most abortions after 15 weeks but opposed ending a constitutional right to abortion at all stages of pregnancy. Though she did not write an opinion, Barrett’s presence on the court made the difference, providing the fifth vote necessary to overturn Roe.
A similar dynamic played out months earlier when the high court allowed Texas to continue enforcing a ban on most abortions after six weeks of pregnancy. Roberts would have permitted abortion clinics challenging the ban to bring their fight to more defendants, potentially making it easier to halt the law. In the end, the 5-4 decision was a significant win for those opposed to abortion.
Barrett, nominated by President Donald Trump and confirmed days before the 2020 election, once again cast the deciding vote.
By some measures, Barrett may have aligned more closely with Roberts and Associate Justice Brett Kavanaugh than with stalwart conservatives like Associate Justices Clarence Thomas and Samuel Alito. Barrett agreed in full with Roberts and Kavanaugh in about three-quarters of decisions last term, according to statistics compiled by SCOTUSblog – slightly more than with Thomas or Alito.
Josh Blackman, a law professor at South Texas College of Law Houston, said that Barrett appears to have sided more with Roberts and Kavanaugh in emergency cases, where the court decides whether to block enforcement of a law while it continues to be litigated. Those kinds of assessments can be tricky, Blackman has noted, because the court doesn’t often disclose how justices voted in those matters.
In October, when the high court’s most recent term was getting underway, Barrett also balked at an emergency request from medical workers who sued over Maine’s COVID-19 vaccine requirement because it lacked a religious exemption. Three conservative justices – Thomas, Alito and Neil Gorsuch – wanted to block Maine’s vaccine mandate. But Barrett indicated she didn’t want to do so – at least not without a full hearing.
Barrett noted the court has “discretionary judgment” about whether to take an emergency appeal. Without that discretion, she wrote, “applicants could use the emergency docket to force the court” to give a “merits preview in cases” on a “short fuse.” At the time, the court’s emergency docket had come under considerable criticism for doing exactly that.
But if progressives had hoped Barrett might team up with Roberts and Kavanaugh more often to limit the conservative justices’ march to the right, they were sorely disappointed. A former Notre Dame law professor who clerked for the late Associate Justice Antonin Scalia, Barrett – if anything – burnished her reputation as an originalist, a jurist who seeks to interpret the Constitution as the framers would have understood it.
Rakim Brooks, president of the liberal Alliance for Justice, said Barrett has turned out to be exactly what progressives expected – and warned about.
“I don’t think there were really any surprises,” Brooks said. “We’re on the record as seeing her as being part of the Trump court, which is to say a set of very right, radical ideologues produced by the Federalist Society over a couple of generations now.”
Sometimes – though rarely – conservative or liberal justices take a position that supports the opposite ideology. The most notable recent example was when Gorsuch sided in 2020 with three employees who were fired because of their sexual orientation or gender identity. Brooks said it’s too early to say if there are areas where Barrett’s judicial philosophy may align with progressive positions.
While Barrett’s votes are clear, court watchers are still parsing her reasoning. Partly because she’s still new – the more senior justices reserve the biggest cases for themselves – Barrett’s six majority opinions in the 2021-2022 term captured few headlines and dealt with federal statutes rather than constitutional questions. She wrote fewer concurrences and dissents than any of her colleagues except Roberts.
Instead of writing separately to explain her analysis in the guns case, for instance, Barrett waded into a debate over whether the court should look as a guide to the nation’s history when the Bill of Rights was adopted in 1791 or in 1868 when the 14th Amendment was ratified. Looking at history has become a critical practice for the court’s conservatives, but it’s not always clear which history is most relevant.
Barrett didn’t answer the question.
“Today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights,” Barrett wrote.
Blackman said that Barrett’s separate writings seemed geared toward raising questions of interest more than trying to move the law in any particular direction.
“Gorsuch is making his presence felt by pushing the court to the poles. Kavanaugh is making his presence felt by moderating the court. But Barrett has done neither,” Blackman said. “She is not pushing the court to the right, the left, or the middle.”
Barrett v. Gorsuch
While analysts debate Barrett’s jurisprudence, it’s easy to see which justice she didn’t align with last term: Gorsuch.
Barrett wrote four non-unanimous majority opinions since January. Gorsuch, a conservative who sometimes hews more closely to libertarianism, dissented from all four. The two agreed in full 61% of the time, a lower rate than Barrett enjoyed with any of her other four conservative colleagues.
When Barrett, in a 5-4 decision, ruled against an Indian immigrant who was being deported after he incorrectly identified as a U.S. citizen on a drivers license form, Gorsuch sided with the court’s liberals, asserting that the Department of Homeland Security misread the law and that lower courts should have been able to remedy that error.
The immigrant, Gorsuch wrote, would have been entitled to a drivers license anyway and so he didn’t have an incentive to deceive officials by checking the wrong box, as an immigration judge had ruled.
And in a move that once again underscored her influence, it was Barrett who appeared to upend one of Gorsuch’s priorities.
Two years ago, Gorsuch joined with the court’s liberal wing – then four strong, with Ginsburg’s vote – in a ruling that vastly expanded what is considered Native American territory in Oklahoma. The case was a significant one for Gorsuch, a former judge on the Denver-based U.S. Court of Appeals for the 10th Circuit with an extensive background in tribal law.
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This term, Oklahoma officials asked the Supreme Court to limit how that case affected criminal prosecutions on Native lands. Gorsuch once again sided with the liberals.
Barrett joined with the court’s other conservatives – meaning Gorsuch lost the majority his views had garnered just two years earlier.
“It’s very, very clear,” Malcolm said “Oklahoma would have lost that case if Amy Coney Barrett was not on the court.”
This article originally appeared on USA TODAY: How Trump nominee Amy Coney Barrett is changing the Supreme Court
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