Judge Amy Coney Barrett draws attention to questions and dissents

With piercing questions from the bench and a willingness to break ranks with other Republican nominees at a time of conservative dominance on the court, Barrett has taken on a new role this term — calling for a pragmatic, incremental approach to some cases in which her colleagues wanted to move more aggressively.

“She has an independent spirit working in a court that often falls into camps — and that’s refreshing to see,” said Deepak Gupta, a Washington lawyer who follows the court’s work.

“The justice to watch,” said Melissa Murray, a law professor at New York University and co-host of a liberal podcast about the court called Strict Scrutiny.

Barrett, a former law professor and federal appeals court judge, remains close to the right She was at the heart of the Supreme Court, often aligning herself with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh. She spoke on their behalf in a case over emergency access to abortion care in Idaho, but split from them with her dissent in the EPA lawsuit, which granted emergency aid to states and energy companies that challenged the Biden administration’s smog-reduction plan.

In another high-profile case, Roberts called on She wrote the decision rejecting a Republican-led initiative to limit White House contacts with social media platforms over potential misinformation — a notable mission for the second-youngest justice. Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

Barrett, who at 52 is also the youngest justice, has clashed openly with other conservatives this term over the proper role of tradition and history in deciding cases, including by siding with the Supreme Court when it upheld a federal gun law that confiscates guns from people subject to domestic violence restraining orders.

But legal analysts say its jurisprudence remains firmly right-wing.

“Justice Barrett is everyone’s favorite conservative justice these days. But if anyone thinks she’s going to ‘move’ to the left side of the court, they’re mistaken,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law School.

“She is a conservative jurist at heart. She will not be the next Harry Blackmun or David Souter,” he said in an email, referring to two former justices appointed by Republican presidents who became some of the court’s most liberal members.

Indeed, it was Trump’s nomination of Barrett in September 2020 that took place… a catholic with a good anti-abortion faith — which allowed The conservative majority will overthrow Roe v. Wade Two years later, he removed the nation’s right to abortion after nearly 50 years.

Democrats were outraged that then-Senate Majority Leader Mitch McConnell (R-Ky.) pushed Barrett to replace her the late liberal icon Ruth Bader Ginsburg, days before the 2020 presidential election, instead of allowing the next occupant of the White House to make their choice. What fueled their anger was McConnell’s blocking of President Barack Obama’s nomination of Merrick Garland months before the 2016 election.

Barrett fell in line with his colleagues Trump’s nominations in most of the major cases have divided the court ideologically, including decisions to end race-based college admissions and invalidate Biden’s student loan forgiveness program last term. This year, she voted with other conservatives to limit the power of federal agencies that regulate major aspects of American life and to extend immunity from prosecution to former presidents, including Trump.

But Barrett also separated herself from her colleagues in a game of Trump argued her case, saying she agreed with liberal justices that prosecutors should not have to exclude at trial any mention of a president’s immunized official acts related to the alleged wrongdoing.

“Judge Barrett is a conservative justice in many senses of the word. She certainly fits the Court’s trend of moving to the right in major cases,” Allison Larsen, who teaches at William & Mary Law School, said in an email. “But she also seems to prefer a conservative (with a small c) methodology that is cautious, careful, and thoughtful.”

Her crossover votes and separate writing this term show that “she is far from the rigid conservative some expected when she joined the Court,” attorney Gregory S. Garre, who served as solicitor general under President George W. Bush, said in an email.

In previous years, Barrett has subtly signaled his She disagreed with other conservative justices, but she still voted largely with them. This term, Harvard Law Professor Richard Lazarus said, “She announced her split with both votes and all the trumpets blaring.”

When the Supreme Court ruled that federal prosecutors had overstepped their authority by invoking an obstruction statute to charge defendants with disrupting the vote count on Jan. 6, 2021, Barrett wrote the dissent. Joined by liberal Justices Sonia Sotomayor and Elena Kagan, she criticized the majority for suggesting that in passing the obstruction statute, Congress did not intend to apply it to an event like the Capitol riot — or even contemplate such an event.

“Who could blame Congress for this lack of imagination?” she asked parenthetically.

It is likely that Sotomayor, who has seniority among the liberal justices, assigned Barrett to write the dissent. The two men appear to have a warm relationship and have made several joint public appearances to air their disagreements in a more congenial manner.

Barrett too The court diverged from the conservative majority when the court rejected a California lawyer’s request to trademark “Trump Too Small” for use on T-shirts. Barrett concurred in the outcome but wrote separately to criticize the majority opinion — written by Thomas — saying some of its reasoning is “double-crossed” and taking issue with Thomas’s “laser-like focus on history.”

Jonathan Adler, a law professor at Case Western Reserve University who has known Barrett since her days at Notre Dame, said Barrett “speaks more directly and in her own voice.”

“More than some judges, if she wants to support a change in the law, she really wants to know what’s on the other side of that door,” he said.

In one of the most closely watched cases of the term, Barrett showed she is increasingly comfortable criticizing any of her colleagues. When the court unanimously rejected a Colorado decision that would have disqualified Trump from the ballot for his actions around Jan. 6, Barrett joined liberals in a concurring opinion that said parts of the majority decision violated the law. too far.

But Barrett suggested that the Liberals had also overstepped their authority in their separate opinion, which criticized their colleagues for trying to “protect all alleged insurrectionists from future challenges to their mandates.”

Barrett said the presidential election case required some civility. “Right now, our differences are far less important than our unanimity,” she wrote. “All nine justices agree on the outcome of this case. That is the message Americans should take away.”

The judge also distinguished herself by her questions asked at the bar. During the oral arguments in the emergency abortion case In that case, Barrett expressed frustration with the lawyer representing Idaho, whose answers appeared to differ from what was said in lower court proceedings.

“Sir, I’m a little shocked,” she said.

In another case challenging access to the abortion pill, Barrett, along with the other female justices, was extraordinarily specific in their questioning. A mother of seven, she spoke openly on medical procedures after miscarriages and other aspects of reproductive health.

Last week, when the court cleared the way to allow at least temporary access to emergency abortions in Idaho As the litigation continues, Barrett — joined by Roberts and Kavanaugh — wrote that the evolving situation on the ground and the parties’ positions meant the court had intervened erroneously and prematurely.

During the discussion of Trump’s immunity claims, Barrett seemed more interested in the practical implications of the court’s final decision for the former president’s trial in Washington than her conservative colleagues, who have steered questions away from alleged election interference and toward broader principles of executive power.

In a key exchange, Barrett got Trump’s lawyer to acknowledge that many of the acts alleged in the special counsel’s indictment constitute private conduct that would not be immune from prosecution.

Last fall, Barrett participated in an interview with Catholic University law professor Kevin Walsh, a former law clerk to the late Justice Antonin Scalia. It sounded a lot like a former law professor when she explained that she often writes separately to send a message to scholars and lawyers about evolving legal issues or to provide guidance to lower courts about the limits of an opinion.

“Every time I disagree with part of an opinion,” she said, “I feel like I owe an explanation.”