Judge Amy Coney Barrett Calls Attention to Questions and Dissenting Opinions

The dissent was sharp, accusing the Supreme Court’s conservative majority of “weak” and “selective” arguments that unfairly downplayed the Environmental Protection Agency’s role in protecting air quality.

Naturally, all three liberal justices signed it.

But the writer was a conservative nominated by President Donald Trump: Judge Amy Coney Barrett, who has forged a unique path during her fourth term on the Supreme Court.

With pointed questions from the bench and a willingness to step aside from other Republican nominees in an era of conservative dominance on the court, Barrett played a new role this term: She called for a pragmatic, incremental approach to some cases where her colleagues wanted to be more aggressive.

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

“The justices are worth keeping an eye on,” 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 center of the court, and usually aligned with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh. She spoke for them in a case over emergency access to abortion care in Idaho, but broke with them in her dissent in the EPA’s lawsuit, which granted emergency aid to states and energy companies challenging the Biden administration’s smog-reduction plan.

In another high-profile case, Roberts her to write the executive order rejecting a Republican-led effort to limit White House contacts with social media platforms over potential disinformation — a remarkable assignment 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 on the bench, has openly defied other conservatives this term over the proper role of tradition and history in deciding cases, most notably in her vote to uphold a federal gun law that strips guns from people subject to restraining orders.

But legal analysts say her jurisprudence remains clearly right-wing.

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

“She is a conservative jurist through and through. She will not be the next Harry Blackmun or David Souter,” he said in an email, referring to two former justices nominated by Republican presidents who were among the court’s more liberal members.

It was indeed Trump’s nomination of Barrett in September 2020 — a Catholic with anti-abortion bona fides that allowed the conservative majority to destroy Roe vs. Wade Two years later, the national right to abortion was abolished after almost 50 years.

Democrats were furious that then-Senate Majority Leader Mitch McConnell (R-Ky.) had forced Barrett to the late liberal icon Ruth Bader Ginsburg, just days before the 2020 presidential election, rather than let the next occupant of the White House make the choice. Their anger was fueled by McConnell’s blocking of President Barack Obama’s nomination of Merrick Garland just months before the 2016 election.

Barrett has joined her colleagues Trump nominees in most of the major cases that have ideologically divided the court, including decisions to end race-based college admissions and invalidate Biden’s student loan forgiveness program, last term. This term, she voted with other conservatives to curb the power of federal agencies that regulate key aspects of American life and grant broad immunity from prosecution to former presidents, including Trump.

But Barrett also partially separated herself from her colleagues Trump said she agreed with the liberal justices that prosecutors should not be allowed to exclude during trial the possibility of bringing up a president’s immunized official conduct in connection with alleged misconduct.

“Judge Barrett is a conservative judge in many senses of the word. She certainly accompanies the court’s moves to the right on major cases,” Allison Larsen, a professor at William & Mary Law School, said in an email. “But she also seems to favor a conservative (lowercase c) methodology that is risk-averse, careful, and deliberate.”

Her cross-votes and her odd writings 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 attorney general under President George W. Bush, said in an email.

In previous years, Barrett subtly gave her a sign disagreements with other conservative justices, but voted largely with them. This term, said Harvard Law professor Richard Lazarus, “she announced her split with both voices and all the trumpets blaring.”

When the court said federal prosecutors had gone too far by using an obstruction law to charge defendants accused of interfering with the counting of electoral votes on January 6, 2021, Barrett wrote the dissent. Along with liberal justices Sonia Sotomayor and Elena Kagan, she criticized the majority for suggesting that Congress, in passing the obstruction law, did not intend it to apply to an event like the Capitol riot — or even foresee such an event.

“Who could blame Congress for that lack of imagination?” she asked, casually.

It is likely that Sotomayor, who has seniority among the liberal justices, appointed Barrett to write the dissent. The two appear to have a warm relationship and have made several joint public appearances to sweeten the argument for dissent.

Justices Sonia Sotomayor and Amy Coney Barrett discuss building bridges and “lowering the temperature” in the courtroom. (Video: Ross Godwin/The Washington Post)

Barrett too dissented from the conservative majority when the court rejected a California lawyer’s attempt to trademark “Trump Too Small” for use on T-shirts. Barrett agreed with the outcome but wrote separately to criticize the majority opinion — written by Thomas — saying some of its reasoning is “doubly wrong” and criticizing Thomas’ “laser-like focus on history.”

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

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

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

But Barrett suggested the Liberals had also gone too far in their separate opinion, criticizing their colleagues for trying to “protect any perceived insurgents from future challenges to their office.”

Barrett said the presidential election case called for civility. “For present purposes, 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 home.”

The judge also distinguished herself with her questions of the court. During the oral argument in the emergency abortion In this case, Barrett expressed frustration with the attorney representing Idaho. His responses seemed to differ from what was said in the lower case.

“Lawyer, I’m quite shocked,” she said.

In another case challenging access to the abortion pill, Barrett, along with the other female justices, was unusually specific in her questions. mother of seven children, she spoke openly about medical procedures after miscarriage and other aspects of reproductive health.

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

During the debate over Trump’s claims of immunity, Barrett seemed more interested in the practical implications of the court’s final ruling for the former president’s trial in Washington, D.C., than her conservative colleagues. They shifted their questions away from alleged election interference and focused instead on the broader principles of executive power.

In a key conversation, Barrett got Trump’s lawyer to admit that many of the alleged actions in the special counsel’s indictment amounted to private conduct that would not be protected 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. Barrett sounded like a former law professor when she explained that she often writes separately to inform academics and lawyers about changing legal issues or to guide lower courts on the limits of a judgment.

“If I disagree with part of an opinion,” she said, “I feel like I have to make a statement.”

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