Justice Amy Coney Barrett, 52, is the Supreme Court’s youngest member and the junior member of its conservative supermajority. She completed her third full term last week.
Yet she has already emerged as a distinctive force within the court, with opinions that her admirers say are marked by intellectual seriousness, independence, caution and a welcome dose of common sense.
During the term that ended last week, she held a series by agreeing opinions questioning and sharpening the methods and conclusions of the majority.
She wrote notable dissenting opinions, supported by liberal judges, on decisions limiting the tools prosecutors can use in cases against members of the January 6 crowd and blocking a Biden administration plan to combat air pollution. And she voted with the court’s three-member liberal wing in March, saying the majority governed too liberally in reinstating former President Donald J. Trump to the Colorado ballot.
In short, Judge Barrett was the Republican-appointed judge most likely to vote for a liberal outcome in the final term.
That doesn’t make her a liberal, she said. Irv Gornsteinthe director of the Supreme Court Institute at Georgetown University.
“Remember,” he said, “she voted to overturn Roe v. Wade. She voted to ban affirmative action. She almost always votes against the administrative state. And she voted to reject every challenge to the right to vote.”
“Yes,” added Professor Gornstein, “she is more principled, more open-minded, more thoughtful than some of the others. She cares more about precedent than some of the others. She is not as enamored of history and tradition as some of the others. But that is all.”
Still, some conservatives are alarmed, comparing Judge Barrett unfavorably to the other two justices Trump appointed, Justices Neil M. Gorsuch and Brett M. Kavanaugh. Both men served on federal appeals courts for more than a decade before joining the Supreme Court, building a strong track record in the process. Judge Barrett spent most of her career as a law professor at Notre Dame and served on the federal appeals court in Chicago for nearly three years.
During her stay there she wrote only one notable opinion: a dissenting opinion in a Second Amendment caseaccording to a recent blog post Through Josh Zwartmana law professor at South Texas College of Law Houston. She arrived at the Supreme Court unformed and untested, he added, leaving her open to persuasion by the most wily member of the liberal wing, Justice Elena Kagan.
“When you choose someone without a criminal record, you can be sure they will not be what you expected,” Professor Blackman wrote, adding: “Gorsuch and Kavanaugh are not cut from the same cloth as Barrett. Barrett was a piece of unfinished wood, and Justice Kagan covers her with one coat of glossy varnish after another.”
Judge Barrett was rushed to the court by Trump and Senate Republicans following the death of Justice Ruth Bader Ginsburg, a liberal icon who died in September 2020. Judge Barrett joined the court the following month, just before the presidential election.
During her confirmation hearings, Democrats portrayed her as a religious fanatic who would destroy the Affordable Care Act and hand the presidency to Trump.
“You have a long history of believing that your religious beliefs should prevail,” Sen. Dianne Feinstein, Democrat of California, told her during her 2017 confirmation hearings for the appeals court. She added: “The dogma lives loudly within you.”
The phrase became a culture wars slogan, embraced by social conservatives and appearing on T-shirts, tote bags and coffee mugs. It helped propel her to the Supreme Court.
During her 2020 confirmation hearings, Democrats argued she had the power to overturn the Affordable Care Act, President Barack Obama’s 2010 health care law, and feared she would favor Trump in a lawsuit over that year’s election.
Judge Barrett’s record has not so far confirmed their worst fears. She has largely voted in favor of religious freedom claims. But in a dissenting opinion In her first term in 2021, which set the tone for much of her work on the Supreme Court, she rejected a request to overturn a key 1990 precedent limiting First Amendment protections for religious practices.
Justices Gorsuch, Clarence Thomas and Samuel A. Alito Jr. said they were prepared to overturn the decision, Employment Department v. Smith.
Justice Barrett was sympathetic but cautious, writing that the court should not overrule precedent unless it has a fully realized alternative. “I therefore see no reason to decide in this case whether Smith should be overruled, much less what should take its place,” she wrote.
Her opinion struck a different tone that would become familiar. While she says she is an originalist, who seeks to discern and follow the Constitution’s original public meaning, she is keenly aware of the limitations of historical evidence. “While history plays a large role in this debate,” she wrote, “I find the historical record more silent than supportive.”
Democrats’ unease about the Affordable Care Act proved misplaced. In 2021, Judge Barrett joined a seven-justice majority in denying the third major challenge to the law, based on a theory that would come to play a key role in her jurisprudence: that the plaintiffs had not suffered the kind of injury that gave them standing to sue.
That was the ground on which the court kept the widespread availability of an abortion pill and the basis of one of Justice Barrett’s majority opinions last month. In that case, Murthy vs. Missourishe summarily rejected a Republican bid to prevent the government from communicating with social media platforms to combat what she called misinformation. Justices Thomas, Alito and Gorsuch dissented.
In the fall of 2020, shortly after Justice Ginsburg’s death, Mr. Trump suggested that his third nominee would help him secure a second term. “I think this is going to end up in the Supreme Court,” he said of the 2020 election. “And I think it’s very important that we have nine justices.”
But Judge Barrett withdrawn herself by election affairs which were submitted to the court as urgent applications in October. A spokeswoman for the court explained that it did so “due to the need for a quick resolution” and “because it had not had time to fully review the parties’ submissions.”
And when the court dismissed a lawsuit by Texas in December, which sought to throw out election results in four swing states, the unsigned order did not indicate that any of Trump’s three appointees dissented. Justice Alito, joined by Justice Thomas, issued a brief statement on a technicality.
In the current election year, Judge Barrett has ruled both concurring and dissenting in all three decisions involving or affecting Mr. Trump.
In March, in the colorado caseshe wrote that she agreed with the majority that Section 3 of the 14th Amendment, which prohibits insurgents from holding office, does not authorize states to disqualify presidential candidates. “That principle is sufficient to resolve this case,” she wrote, “and I would decide no more.”
The majority had gone too far, she wrote, by saying that detailed federal legislation is needed to enforce Section 3. The court’s liberal bloc took that position in its own, more forceful concurring opinion.
Justice Barrett, who had sided with her liberal colleagues, challenged their tone. “In my judgment, this is not the time to amplify disagreement with shrillness,” she wrote.
In Judge Barrett’s Dissenting View In the Jan. 6 prosecution case, joined by Justices Kagan and Sonia Sotomayor, she said a broadly worded federal obstruction law that was also used in a case against Trump meant what it said. She accused the majority of performing “textual backflips” to thwart prosecutions.
She conceded that events like the January 6 attack were not the intended target of the law. (“Who could blame Congress for that lack of imagination?” she asked.)
“But statutes often go beyond the issue that inspired them,” she wrote, “and under the rules of statute interpretation, we stick to the text anyway.”
In the decision granting Mr. Trump significant immunity from prosecution, Judge Barrett wrote: a dissenting opinion propose a different framework than what Chief Justice John G. Roberts laid out in the majority opinion. She said Trump’s efforts to organize alternative slates of voters were “not entitled to protection” and added that she agreed with the dissent on how evidence may be used in the case.
In the case of air pollutionIn her dissent, Justice Barrett focused on what she called flaws in aspects of Justice Gorsuch’s majority opinion, calling them “weak” and “cherry-picked.”
The court’s three liberal members – Justices Sotomayor, Kagan and Ketanji Brown Jackson – joined her.
Pamela S. KarlanStanford law professor, said it was an example of “the interesting gender dynamics on the current court, where Justice Barrett joins the three other women on a number of points.”
“The issues are not gender-related per se,” Professor Karlan said, “but it is still interesting to see her charting her own course.”
Derek T. Muller, a law professor at Notre Dame, said the nature of Justice Barrett’s jurisprudence is clear from a review of her entire body of work on the court. “She is intellectually independent,” Professor Muller said, “yet profoundly conservative.”
