WASHINGTON – During her Senate confirmation hearings, Supreme Court Justice Amy Coney Barrett uttered a memorable line to describe her approach to cases: “It’s not the law of Amy.”
Barrett cemented the Court’s conservative supermajority four years ago and has since voted in favor of overturning the nationwide right to abortion, striking down affirmative action in college admissions and expanding gun rights. Still, during the most recent term that included sweeping blows to federal regulation and key wins for former President Donald Trump, her opinions reflected a willingness at times to step away from the conservative majority.
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Barrett wrote sharp dissents in a case connected with the attack on the U.S. Capitol on Jan. 6, 2021, and another on regulation of downwind air pollution. Appointed by Trump, she differed on some points of the former president's historic immunity ruling and critiqued parts of the majority decision keeping him on the ballot.
“While she is very firmly rooted in the conservative bloc, she doesn’t necessarily move in lockstep with the rest of the court’s conservatives. There are these surprising glimmers of independence,” said Melissa Murray, law professor at New York University.
In the Trump immunity case, Barrett joined the majority overall but disagreed with the finding that restricted the evidence prosecutors can use in criminal cases against presidents. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote.
And while the majority opinion authored by Chief Justice John Roberts directed lower courts to analyze whether Trump could be prosecuted on allegations that he participated in a scheme to enlist fake electors in battleground states, Barrett wrote that she saw “no plausible argument” for barring prosecution of that part of the indictment.
“Her opinion is basically a roadmap for how the case could have gone forward,” said Steve Vladeck, a law professor at Georgetown University.
“We’re seeing, I think, the emergence of Justice Barrett as a principled voice in the middle of the court,” he said, adding however that the impact is muted by Roberts' vote landing further right.
The two were on opposite sides in the Jan. 6 case, with Barrett writing in a dissent that Roberts and the majority had done “textual backflips” to reach the opinion that makes it harder for prosecutors to charge rioters with obstruction.
The court was unanimous in the decision to keep Trump on the ballot, but Barrett wrote in a concurrence that she thought the majority went further than necessary — while also chiding the court's liberal wing for the “stridency” of its separate concurrence.
“She’s not always looking at it from the same perspective as her colleagues on the left or the right, and I think we’re going to see more of that uniqueness,” said Adam Feldman, a scholar and creator of the blog Empirical SCOTUS.
She also differed with a decision halting an Environmental Protection Agency plan to fight air pollution. Joining with the high court's liberal justices, she wrote a dissent referring to majority arguments as “feeble," saying they had relied on “cherry-picked” data and downplayed the EPA's role.
Roberts and Barrett did join sides on an limited order allowing emergency abortions to resume for women in Idaho. Barrett, who was part of the high court majority that struck down Roe v. Wade in 2022, wrote a concurrence saying the court was dismissing the case because the facts had changed since it first decided to take it up.
The order did not resolve key questions at the heart of the case, and the issue could come before the high court again soon, though not until after the November presidential election.
While Barrett showed a willingness to depart from the conservative majority at times, she more frequently joined it. Over the course of more than five dozen cases the court considered this year, Barrett joined with the majority 92% of the time, Empirical SCOTUS found. She was in the majority third most often, after Roberts and Justice Brett Kavanaugh. She voted in favor of decisions that weakened federal regulators, allowed more aggressive sweeps of homeless encampments in the West and overturned a federal ban on bump stocks, the rapid-fire gun accessories used the in the nation's deadliest mass shooting.
“I don’t know that it does make a big difference in the direction of the court. It’s a conservative supermajority, and she’s part of that supermajority,” Murray said. “Most of the time she is with that supermajority, and even when she’s not, it’s at the margins.”