Justice Amy Coney Barrett, 52, is the youngest member of the Supreme Court and the junior member of the conservative majority. Last week, he completed what was only the third time.
But he has emerged as a distinctive force at court, publishing opinions that his admirers say are characterized by intellectual seriousness, independence, caution and a measure of common sense.
In the term that ended last week, he submitted several opinions that were similar to the question and sharpened the methods and conclusions of the majority.
He wrote a landmark dissent, joined by a liberal justice, of a ruling that limited the tools prosecutors can use in cases against members of the January 6 mob and blocked the Biden administration’s plan to fight air pollution. And he voted with the liberal wing of the three-member court in March, saying the majority had ruled too broadly in restoring former President Donald J. Trump to the Colorado ballot.
Bottom line: Justice Barrett is the Republican representative most likely to vote for a liberal outcome in the last term.
That doesn’t make him a liberal, said Irv Gornstein, executive director of Georgetown University’s Supreme Court Institute.
“Don’t forget,” he said, “he voted to defeat Roe v. Wade. He voted to ban affirmative action. He almost always voted against the administrative state. And he voted to reject every challenge to voting rights.
“Yes,” said Professor Gornstein, “he was more principled and open-minded and wise than some of the others. He cared more about precedent than some of the others. He was not as fond of history and tradition as some of the others. But to this day.”
Some conservatives are worried, however, comparing Justice Barrett unfavorably to two other Trump appointees, Judges Neil M. Gorsuch and Brett M. Kavanaugh. Both men had served on federal appeals courts for more than a decade before joining the Supreme Court, producing a formidable paper trail in the process. Justice Barrett spent most of his career as a law professor at Notre Dame and sat on the federal appeals court in Chicago for just shy of three years.
While there, he wrote just one opinion, a dissent in a Second Amendment case, according to a recent blog post by Josh Blackman, a law professor at South Texas College of Law Houston. He came to the Supreme Court unformed and untested, he added, making him easily persuaded by the most intelligent member of the liberal wing, Justice Elena Kagan.
“When you elect someone without a record, you can be sure that they will not be what you want them to be,” Professor Blackman wrote, adding: “Gorsuch and Kavanaugh are not cut from the same block of wood as Barrett. Barrett is an unfinished piece of wood, and Justice Kagan covered him with one layer of glossy lacquer after another.
Justice Barrett was brought to the court by Mr. Trump and Senate Republicans after the death of Justice Ruth Bader Ginsburg, a liberal icon who died in September 2020. Justice Barrett joined the court next month, before the presidential election.
At his confirmation hearing, Democrats portrayed him as a religious zealot who would destroy the Affordable Care Act and try to deliver the presidency to Mr. Trump.
“You have a long history of believing that your religious beliefs should come first,” Senator Dianne Feinstein, Democrat of California, said during her 2017 confirmation hearing to the appeals court. He added, “Dogma lives loudly in you.”
The phrase became a slogan in the culture war, embraced by social conservatives and appearing on T-shirts, tote bags and coffee mugs. It helped push him to the Supreme Court.
In his 2020 confirmation hearing, Democrats called on him to vote certain to repeal the Affordable Care Act, President Barack Obama’s 2010 health care law, and worried that he would vote for Mr. Trump in litigation over that year’s election.
Justice Barrett’s record so far has not confirmed his worst fears. They generally voted to support the demand for religious freedom. But in a similar opinion in his first term in 2021, which set the tone for much of his work on the Supreme Court, he rejected a request to overturn a landmark 1990 precedent that limited First Amendment protections to religious practice.
Justices Gorsuch, Clarence Thomas and Samuel A. Alito Jr. said they were ready to overturn the decision, Employment Division v. Smith.
Justice Barrett was sympathetic but cautious, writing that courts should not overrule precedent unless they have a well-established alternative. “Therefore I see no reason to decide on this point whether Smith should be defeated, much less what should be replaced,” he wrote.
His opinion reached another note that will soon become familiar. While he says that he is an originalist, eager to understand and follow the general meaning of the Constitution, he is well aware of the limitations of historical evidence. “While history looms large in this debate,” he wrote, “I find the historical record more muted than supportive.”
Democrats’ anxiety over the Affordable Care Act is misplaced. Justice Barrett joined a majority of seven judges in 2021 to reject the third main challenge to the law, on a theory that would play an important role in his jurisprudence: that the plaintiffs did not suffer as much as it caused them to stand. charge.
It was the court’s cornerstone for maintaining the availability of the abortion pill and the basis of one of Justice Barrett’s majority opinions last month. In that case, Murthy v. Missouri, he refused on the grounds of standing Republican bid to prevent government communication with social media platforms to combat what he says is misinformation. Justices Thomas, Alito and Gorsuch dissented.
In the fall of 2020, after Justice Ginsburg’s death, Mr. Trump suggested that a third candidate would help him win a second term. “I think it will 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 Justice Barrett withdrew from the election case which came to the court as an emergency application in October. A spokesman for the court explained that he did it “because of the need for a quick resolution” and “because he did not have time to fully examine the submissions of the parties.”
And when the court rejected a lawsuit by Texas in December that sought to throw the election results in four battleground states, its unsigned order does not indicate that one of Mr. Trump’s three appointees has dissented. Justice Alito, joined by Justice Thomas, issued a brief statement on a technical point.
In the current election year, Justice Barrett has written concurring or dissenting opinions in all three decisions involving or affecting Mr. Trump.
In March, in the Colorado case, he wrote that he agreed with the majority that Section 3 of the 14th Amendment, which prohibits insurgents from holding office, did not authorize states to disqualify a presidential candidate. “These principles are sufficient to settle this case,” he wrote, “and I will decide no further than that.”
The majority went too far, he wrote, in saying that detailed federal legislation was needed to give effect to Section 3. The court’s liberal bloc also took that position in a stronger opinion.
Justice Barrett, who joined his liberal colleagues, questioned the tone. “In my judgment, this is not the time to escalate our disagreement with stridency,” he wrote.
In the dissent of Justice Barrett in the case of the January 6 prosecutions, which was joined by Justices Kagan and Sonia Sotomayor, said that the law of federal obstruction is broadly worded that is also figured in the case against Mr. Trump means what he said. He accused the majority of executing “textual backflips” to thwart the prosecution.
He admitted that events like the January 6 attack were not the intended target. (“Who can blame Congress for such a failure of imagination?” he asked.)
“But statutes often transcend the issues that inspire them,” he wrote, “and under the rules of statutory interpretation, we stick to the text.”
In the decision to grant Mr. Trump substantial immunity from prosecution, Justice Barrett wrote a concurring opinion proposing a different framework from the one Chief Justice John G. Roberts set forth in the majority opinion. He said Mr Trump’s efforts to organize alternative polling stations were “not entitled to protection” and added that he agreed to disagree on how evidence should be used in the case.
In the air pollution case, Justice Barrett, in a dissent, addressed what he said were flaws in aspects of Justice Gorsuch’s majority opinion, calling it “weak” and “cherry-picked.”
Three liberal members of the court – Justices Sotomayor, Kagan and Ketanji Brown Jackson – joined him.
Pamela S. Karlan, a law professor at Stanford, said it was an example of “an interesting gender dynamic in the judiciary today, where Justice Barrett joins three other women on a number of issues.”
“The problem has nothing to do with gender,” says Professor Karlan, “but it’s still interesting that they define their own path.”
Derek T. Muller, professor of law at Notre Dame, said the nature of Justice Barrett’s jurisprudence is evidence of the assessment of all the work in court. “He was intellectually independent,” says Professor Muller, “but still conservative.”
