Source: CNN
Supreme Court Justice Amy Coney Barrett stands apart.
She is the only former full-time law professor on the right wing. And she differs from her five fellow conservatives for the obvious reason that she is the sole woman in their bloc, a mother of seven who peppers her hypotheticals with references to ambitious babysitters and delivered meal kits.
But perhaps most important for the court amid today’s polarization, she is the only one of the conservatives who never served in the top echelons of a Republican administration. She is less likely to echo the GOP political agenda in her questions during oral arguments or reasoning in her written decisions. Her views of executive power, as in Donald Trump’s immunity case last July, are tempered.
And that is why Barrett has become the best hope for what remains of the liberal wing, particularly after Trump’s election victory.
Liberals on and off the bench see Barrett as someone who may provide some equilibrium to a court remaking the law in America, possibly able with her legalistic ways to secure a cross-ideological majority for moderation.
As Trump returns to the White House, the Supreme Court may be even more positioned to check the balance of powers. He has vowed to bring a new level of conservative muscle to the executive branch. Republicans, meanwhile, regained the Senate in Tuesday’s elections and may hold onto the House of Representatives, where several races are yet to be called.
Yet, as much as the 52-year-old former Notre Dame law professor has indeed engaged with the left on legal doctrine, she has routinely cast her vote with the right. She has voted to overturn precedent on abortion, affirmative action and federal regulatory power. So far it is her method, not bottom-line votes, that primarily sets this Trump appointee apart.
Nonetheless, progressives have few options, and an uncertain horizon, and cannot help but imbue Barrett with hope.
Perhaps that is also to fill a notable void.
In previous decades, as a succession of Republican appointees galvanized the court’s right wing, individual justices defied expectations and staked out the center.
Justice Sandra Day O’Connor, a 1981 Reagan appointee who retired in 2006 and died last December, exemplified the phenomenon. She satisfied the left but struck dread among movement conservatives, as did Justice Anthony Kennedy, who served from 1988 to 2018.
Republican presidents have been dominating judicial appointments and will continue to do so after Trump’s election this week. In the past 55 years, as a total of 20 Supreme Court vacancies occurred, Republican presidents were able to fill 15 seats, and Democratic presidents only five.
Three of those Democratic appointees, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, are still sitting, a frustrated minority facing a conservative-supermajority.
In their quest for some middle ground, they engage Barrett on the bench and as they draft opinions.
During oral arguments, liberal justices often pick up on her questioning to make their own points and try to persuade her in their direction.
In October, on the first day of the current session, Barrett homed in on the timing of a statute of limitations, repeatedly asking for clarification. Sotomayor immediately referred to Barrett’s query before making her own point.
“As Justice Barrett said…,” is a common Kagan refrain, too. Last Monday, in a controversy tied to a whistleblower’s claims that schools were overcharged for telecommunications services, Barrett entered the fray early with a series of queries. Then Kagan interjected, “I had the same sort of question that Justice Barrett did…”
In a similar vein, the lawyers who stand at the court’s lectern have become more attentive to Barrett’s queries, circling back to the topics she raises as they field questions from other justices.
Barrett declined a CNN request for an interview for this story.
A meticulous approach
Before Barrett takes the bench with the eight other justices, her assistants emerge from behind the red velvet drapes with briefs, binders and a mug and meticulously arrange the items at her place.
Aides to other justices sometimes set out case materials before oral arguments begin, but they tend to drop them quickly. The routine at Barrett’s place on the bench is notably particular.
The exacting jurist is succinct in questioning advocates in the well of the courtroom. She minimizes any prefatory remarks and swiftly gets to what she wants to know. (She seems thoroughly aware of each minute, waking daily at 5 a.m. to exercise and get children ready for school and keeping a color-coded calendar.)
Barrett delves into the recesses of the factual record of a case and homes in on procedural issues. That was seen in early October in a high-profile Oklahoma death penalty case, when she focused on procedural barriers that could prevent Richard Glossip from obtaining a new trial.
Her queries stood in contrast to those of fellow conservative Brett Kavanaugh, for example, who minimized the procedural obstacles and emphasized, more substantively, the uncertain credibility of the key witness against Glossip.
As she begins her fifth session, Barrett has become conspicuous for writing separate opinions that seem designed to stimulate a dialogue on methodology. She has repeatedly challenged Thomas on his use of historical analogues when engaging in the “originalist” constitutional interpretation they otherwise share. In a June case, she called his interpretation of history and tradition to settle a trademark dispute “wrong twice over.”
A year earlier, she faced off against Kagan, also a former law professor, as they unspooled theories for when agencies may take significant policy action without explicit statutory authorization, in that case, on student-loan forgiveness.
Yet while Barrett takes a more analytical approach, compared to the ideologically inclined conservatives, when casting votes on major cases, Barrett is with them.
She voted last session most often, about 90%, with Roberts and Kavanaugh, according to EmpiricalSCOTUS statistics compiled by Adam Feldman and Jake Truscott.
And on major cultural issues, such as abortion rights and religious liberties, Barrett lands to the right of Republican centrists O’Connor, Kennedy, and, before them, Justice Lewis Powell (1972-1987).
In the most momentous cases since Barrett succeeded the late liberal Ruth Bader Ginsburg in 2020, she has stood firmly with her fellow conservatives: to overturn abortion rights (Dobbs v. Jackson Women’s Health Organization); enhance constitutional protections for gun owners (New York State Pistol & Rifle Association v. Bruen); invalidate college affirmative action (Students for Fair Admissions v. Harvard); and provide Trump substantial immunity from criminal prosecution (Trump v. United States).
Barrett has also been a solid vote to reverse precedent and diminish the power of federal regulators, for example, to protect consumer affairs, public health and the environment.
A native of New Orleans, Barrett first came to Washington in 1997 for judicial clerkships, including with the late conservative bulwark Antonin Scalia. She is guided by Scalia’s originalist approach to the Constitution and narrow textualist interpretation of statutes.
She shared a Roman Catholic faith with Scalia, who was a father of nine and, like her, spoke openly of a profound religious commitment. Barrett and her husband, Jesse, were also influenced by their upbringing in a smaller, close-knit Christian community called People of Praise. Two of their seven children were adopted from Haiti. Another, the youngest, has Down syndrome.
How effective has Barrett been?
Since the high court began its modern conservative turn starting with the tenure of Chief Justice Warren Burger (1969-1986), liberals have looked for a center.
Roberts, Kavanaugh and Barrett have sometimes joined together, separating themselves from Clarence Thomas, Samuel Alito and Neil Gorsuch, on the far right. But their efforts at the middle have been inconsistent, with varying motivations. Roberts has at times appeared concerned with the court’s public standing, which has, in fact, been plunging.
When Barrett has sided with liberals, they’ve typically been in dissent and still short of the five justices needed for a majority.
That was the situation last June when the five other conservatives ruled against a Biden administration effort to reduce smog and air pollution blowing across state lines.
The court’s 5-4 action essentially put the plan on hold while lawsuits brought by Republican states and industry groups proceeded. Barrett’s dissent began by “setting the record straight” as she took issue with several facts that the majority opinion by Gorsuch had laid out. She criticized the majority for blocking the program before lower court judges had assessed the facts and legal merits of the challenge.
“… (W)e should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions,” Barrett wrote, joined by Sotomayor, Kagan and Jackson.
In another instance, Barrett dissented when the majority undercut the Biden administration’s use of a criminal-obstruction law against scores of defendants who had breached the US Capitol on January 6, 2021, after Trump’s speech on the Ellipse protesting the 2020 election results.
Barrett asserted that the majority, led by Roberts, had done “textual backflips to find some way – any way – to narrow the reach” of the law.
In the more consequential Trump immunity case from last session, she signed onto Roberts’ opinion providing substantial protection from prosecution for the former president’s actions while in office. But she separated herself from Roberts’ reasoning that a former president’s actions in the course of official duties could not even be used as evidence in a criminal prosecution.
Still, Roberts had the four other conservatives with him for a majority on his full opinion favoring all Trump’s arguments, and Barrett remained in the minority with her view.
Barrett’s most effective break-away moment came in last session’s Idaho abortion case, when she reconsidered her vote favoring an Idaho ban, even in hospitals when pregnant women suffering serious complications could be covered by federal medical-emergency law allowing termination.
During oral arguments in April, Barrett expressed concern that women whose medical wellbeing and future fertility could be imperiled by the ban that she and the five other conservatives had preliminarily allowed to take effect. The consequences of the justices’ initial order were evident as the state’s largest provider of emergency services began airlifting women experiencing pregnancy complications out of state.
When an Idaho state lawyer defending the ban hedged on whether grave complications could be addressed in emergency room situations, Barrett said, “Counsel, I’m kind of shocked actually because I thought your own expert had said (in a lower court proceeding) that these kinds of cases were covered.”
Barrett’s scrutiny of how the Idaho ban was endangering women caused a shift in the thinking of key justices. The majority ended up dismissing the case and allowing lower court judges to assess the situation first. That blocked the Idaho ban from being enforced in hospital emergencies.
Her move there and in a few others as she inched away from conservatives generated hard feelings on the far right, especially with Alito.
He called Barrett’s grounds for temporarily preventing Idaho from banning abortions in emergency rooms “patently unsound.”
Alito’s pattern of frustration with Barrett was set early. In 2021, he criticized her for balking as the court appeared ready to discard a 1990 standard for disputes over the free exercise of religion. At one point, he referred to a lack of case citations in her concurring statement, saying, “She claims to find support by reading between the lines.”
Alito broadly concluded, “After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”
Engages with the left but usually votes with the right
Yet, Barrett aligns with Alito more than with any of the liberal justices. Even as she is ready to delve into legal doctrine with the left, she ultimately casts her vote with the right.
That happened in the 2023 student loan case, when Barrett voted with her five brethren to reject the Biden administration arguments that federal law gave it the flexibility to forgive student debt.
She wrote a 16-page separate opinion laying out her view of the so-called major questions doctrine, stressing the “importance of context when a court interprets a delegation to an administrative agency.”
She compared a congressional delegation to an agency with a parent’s instructions to a babysitter.
“As she walks out the door, the parent hands the babysitter her credit card and says: ‘Make sure the kids have fun.’ Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?”
Barrett answered, “Highly doubtful,” but added, “What if there is more to the story? Perhaps there is obvious contextual evidence that the babysitter’s jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. … Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight.”
Tying the episode to the major questions doctrine, Barrett concluded, “Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also ‘expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.’”
Kagan wrote that she agreed that context was important but then questioned how Barrett could nonetheless vote with her conservative colleagues that the HEROES Act failed to allow the Department of Education to forgive debt. Kagan noted that a statute provided the authority to “waive or modify” student-loan provisions in a national emergency.
Kagan added: “The broadly worded ‘waive or modify’ delegation IS the HEROES Act, not some tucked away ancillary provision. And as Justice Barrett agrees, ‘this is not a case where the agency is operating entirely outside its usual domain.’ So I could practically rest my case on Justice Barrett’s reasoning.”
In the same way, Barrett’s emphasis on ruling narrowly has been undercut by several votes, including hers to reverse Roe v. Wade.
It just so happened that Barrett appeared before a large audience in California as that decision in Dobbs was being privately negotiated. During her talk at the Ronald Reagan Library in April 2022, Barrett was asked about public criticism of the court’s opinions.
She admonished people in the audience to read the opinion before making a judgment on whether it was wrong.
People, she said, should ask themselves: “Does this read like something that was purely results driven and designed to impose the policy preferences of the majority or does this read like it actually is an honest effort, a persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires as applied to a particular problem at hand?”
In a matter of weeks, her words were overtaken by her actions.
‘My goal today’
Barrett has actively tried to counter the public perception of a Republican-dominated court driven by politics as she speaks to groups. She is also writing a book about how the court operates and has suggested the emphasis will be on justices’ impartiality rather than attachment to ideology.
The book is being published by the conservative Sentinel imprint of Penguin Random House, reportedly for an advance of $2 million. (Barrett reported receiving a $425,000 portion of that in 2021, on an annual financial disclosure form.)
When hundreds of members of the book industry signed an online letter urging the publisher to reconsider the project after the 2022 Dobbs decision, Sentinel publisher Adrian Zackheim told the Wall Street Journal, “We remain fully committed to publishing authors who, like Justice Barrett, substantively shape today’s most important conversations.”
Zackheim also predicted that the Barrett book would be out this year. Contacted recently by CNN, Sentinel publicists offered no publication update and declined to comment.
Barrett’s effort to counter derision of the court began early. She was less than a year into her Supreme Court position when she told a Louisville audience in 2021: “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
Her message, however, may have been compromised by the setting at the University of Louisville McConnell Center, named for Sen. Mitch McConnell. As Republican majority leader, McConnell had blocked Senate consideration of President Barack Obama’s 2016 nomination of then-Judge Merrick Garland to fill the seat opened by Scalia’s death in February that year.
McConnell said it was too close to an upcoming November presidential election. But in 2020, when Ginsburg died in September, McConnell hastened Senate consideration of Barrett’s nomination. She took her seat on October 26, just days before the November 2020 election.