Judge Amy Coney Barrett, 52, is the youngest justice on the Supreme Court and the youngest member of the conservative majority. She completed just her third term last week.
But she has already emerged as a distinctive figure on the court, emanating opinions that her admirers say are characterized by intellectual seriousness, independence, prudence and a welcome degree of common sense.
During her term, which ended last week, she delivered a series of concurring opinions that questioned and further refined the majority's methodology and conclusions.
She wrote notable dissents with the liberal justices in rulings that limited the tools prosecutors could use in the Jan. 6 riot case and blocked the Biden administration's plan to tackle air pollution. She also voted with the Supreme Court's three liberals in March, saying the majority's decision to reinstate former President Donald J. Trump to Colorado's electoral district was too broad.
Bottom line: Judge Barrett was the Republican appointee most likely to vote for a liberal outcome during her last term.
Irv Gornstein, director of the Supreme Court Institute at Georgetown University, said that doesn't mean she's a liberal.
“Let's not forget,” he said, “she voted to overturn Roe v. Wade. she voted to make affirmative action illegal. she almost always votes against the administrative state. And she voted to reject every challenge to voting rights.”
“Yes,” Professor Gornstein added, “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's not as obsessed with history and tradition as some of the others. But that's it.”
Still, some conservatives worry that Judge Barrett compares unfavorably to two other Trump appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, who served on federal appeals courts for more than a decade before joining the Supreme Court and made strong case for themselves along the way. Judge Barrett spent most of her career as a law professor at the University of Notre Dame and served on the federal appeals court in Chicago for just under three years.
During his tenure, he wrote just one notable opinion, a dissenting opinion on the Second Amendment, according to a recent blog post by Josh Blackman, a professor at the South Texas College of Law in Houston, who added that his lack of knowledge and experience when he arrived on the Supreme Court made him vulnerable to the persuasions of Justice Elena Kagan, the court's most intelligent liberal.
“When you choose someone with no criminal record, you can be sure that the person you choose will not be who you expect,” Blackmun wrote, adding that “Gorsuch and Kavanaugh are not cut from the same piece of wood as Barrett. Barrett is an unfinished piece of wood, and Justice Kagan has applied layer after layer of glossy lacquer to her.”
Judge Barrett was hastily confirmed to the Supreme Court by President Trump and Senate Republicans following the death of liberal icon Justice Ruth Bader Ginsburg in September 2020. Judge Barrett joined the court the following month, just before the presidential election.
During her confirmation hearing, Democrats portrayed her as a religious fanatic who wanted to destroy the Affordable Care Act and give President Trump the presidency.
“You have long believed that your religious beliefs should take precedence,” Sen. Dianne Feinstein, D-Calif., told her during her confirmation hearing for the appeals court in 2017. She added, “That doctrine lives powerfully in you.”
The phrase became a culture war slogan, embraced by social conservatives and plastered on T-shirts, tote bags and coffee mugs, and helped propel her to the Supreme Court.
During her 2020 confirmation hearing, Democrats said she was certain to vote to overturn President Barack Obama's 2010 health care reform law, known as “Obamacare,” and worried she could favor Trump in litigation over that year's election.
Judge Barrett's record to date does not support their worst fears: She has largely voted in favor of religious liberty claims, but a concurring opinion she issued during her first term in 2021 set the tone for much of her work on the Supreme Court, rejecting a request to overturn a landmark 1990 case that limited First Amendment protections for religious practice.
Justices Gorsuch, Clarence Thomas and Samuel A. Alito Jr. said they were prepared to overturn the decision in Employment Department v. Smith.
Justice Barrett was sympathetic but cautious, writing that the Court should not sweep precedent aside unless there is a fully feasible alternative: “Thus, I see no reason to decide whether Smith should be overturned in this case, much less what the alternative should be,” she wrote.
Her opinions took on a different tone that would become better known: Though she described herself as a fundamentalist who sought to understand and follow the original public meaning of the Constitution, she was keenly aware of the limitations of historical evidence. “History figures heavily in this debate, but the historical record seems more silent than supportive,” she wrote.
Democrats’ fears about Obamacare turned out to be misplaced. Judge Barrett joined the seven-justice majority in 2021 to reject the third major challenge to the law, but the theory she did so on would play a key role in her jurisprudence: that the plaintiffs had not suffered injury that would give them standing to sue.
This is the basis on which the Court upheld the widespread availability of abortion pills, and was one of the reasons for Justice Barrett's majority opinion last month, in Mursi v. Missouri, in which she rejected on standing grounds a Republican motion to block communications between the government and social media platforms to counter alleged misinformation. Justices Thomas, Alito and Gorsuch dissented.
Shortly after Justice Ginsburg's death in the fall of 2020, Trump suggested a third nomination could help him win a second term. “I think this is going to end up before the Supreme Court,” Trump said of the 2020 election. “And I think it's very important that we have nine justices.”
But in October of that year, Judge Barrett recused herself from an election case that had arrived at the court on an emergency petition, a court spokesman said. She did so “because of the need for a quick resolution” and because she “did not have time to fully consider the parties' filings.”
And when the Supreme Court in December rejected a Texas lawsuit seeking to invalidate the election results in four battleground states, the unsigned order did not note that the three justices appointed by Trump dissented. Justice Alito, joined by Justice Thomas, issued a brief statement on technical issues.
In this election year, Judge Barrett has either concurred or dissented in all three cases involving or affecting Trump.
In March, in a Colorado case, she wrote that she agreed with the majority that Section 3 of the 14th Amendment, which bars insurrectionists from holding public office, does not allow states to disqualify presidential candidates. “This principle is sufficient to resolve this case and I will make no further decision,” she wrote.
She wrote that the majority went too far in arguing that detailed federal law was needed to make Article III enforceable. The Court's liberal wing took a similar position in a stronger concurring opinion.
Judge Barrett sided with her liberal colleagues and questioned their tone: “In my judgment, now is not the time to vocally amplify our differences,” she wrote.
Justice Barrett dissented in the case on the January 6 indictment, joined by Justices Kagan and Sonia Sotomayor, and said the broad federal obstruction of justice statute, which was also featured in the lawsuit against Trump, means what it says. She accused the majority of “turning the law inside out” to block the indictment.
She acknowledged that incidents like the Jan. 6 attack were not the intended target of the law. (“Who can blame Congress for its lack of imagination?” she asked.)
“But statutes often go further than the issue that prompted them,” she wrote, “and under the rules of statutory interpretation, we end up following the language anyway.”
In ruling that granted Trump substantive immunity from prosecution, Justice Barrett wrote a concurring opinion proposing a different framework than the one outlined in the majority opinion by Chief Justice John G. Roberts. Justice Barrett said Trump's efforts to compile an alternative slate of electors “are not entitled to protection,” adding that she agreed with the dissent on how evidence will be used in the case.
In the air pollution case, Justice Barrett, in her dissent, pointed out the flaws in Justice Gorsuch's majority opinion, calling it “weak” and “cherry-picking.”
The Supreme Court's three liberal justices, Sotomayor, Kagan and Ketanji Brown Jackson, joined her.
Pamela S. Karlan, a Stanford law professor, said it was “an example of the interesting gender dynamics on the Supreme Court right now, where Justice Barrett is in line with the other three women on many issues.”
“The issue itself has nothing to do with gender,” Professor Karlan says, “but it's interesting that she's carving out her own path.”
Derek T. Mueller, a law professor at the University of Notre Dame, said the nature of Judge Barrett's jurisprudence is clear when one evaluates her entire career on the court: “She is intellectually independent, but she is still a staunch conservative,” he said.
