How Justice Barrett Carved Out a Unique Voice on the Supreme Court

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She has indicated she won’t blindly follow any particular view of the predominant judicial philosophy, originalism, among conservatives on the court.

Analysis

The Supreme Court is set to hear its first oral argument of the 2024–2025 term on Oct. 7 after releasing a series of hotly debated decisions this summer. The decisions in those cases have led to a flurry of media coverage and speculation that point to one justice, in particular, being the most watched in the coming term.

After just two terms on the court, Justice Amy Coney Barrett has become one of its most talked about members as she makes intriguing moves that both break with her conservative colleagues and indicate an unpredictability for attorneys to study.

She was the last of former President Donald Trump’s nominees to the nation’s highest court, replacing liberal legend Ruth Bader Ginsburg and intensifying fears that American law will be durably skewed by a 6–3 conservative majority.

Her more recent decisions, however, have suggested she’s more of a swing vote in line with former Justice Sandra Day O’Connor rather than a conservative mainstay like Justice Clarence Thomas.

More specifically, she made statements indicating she wouldn’t blindly follow Republican interests or any particular view of the predominant judicial philosophy, originalism, among conservatives on the court.

Heritage Foundation Vice President John Malcolm told The Epoch Times: “Amy Coney Barrett is both an originalist and textualist, but in the more-cautious vein of Chief Justice Roberts and Justice Kavanaugh rather than the bold-strokes vein of Justices Thomas, Alito, and Gorsuch.”

He added that “she also appears to demand a greater quantum of proof than many of her conservative colleagues that history and tradition supports the constitutionality (or lack thereof) of a particular statute or governmental practice.”

Mixed Voting Record

Justice Barrett voted with her conservative colleagues in 6–3 decisions that upended longstanding precedent on abortion (Dobbs v. Jackson Women’s Health) and administrative law (Loper Bright Enterprises v. Raimondo).

But when it came to weighing certain legal challenges that could affect Republican interests, she broke with her conservative colleagues. In its recent term, the court heard two major cases in which former President Donald Trump was a party and two others in which he was less directly implicated.

Vidal v. Elster saw the court weighing a trademark request that leveled a lewd attack on Trump. The court unanimously rejected the attorney Steve Elster’s attempt to claim First Amendment protection over the trademark.

But Justice Barrett’s concurrence and comments during oral argument pointed to a justice open to bucking expectations for a conservative jurist—especially one nominated by Trump. During argument in November, she asked the deputy solicitor general to imagine a scenario in which someone “wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years.”

When the court released its decision in June, Justice Barrett issued a concurrence that was joined by the court’s liberals and revealed deeper fractures than one might expect from a unanimous decision.

She took aim at the court’s majority opinion, which was written by Justice Clarence Thomas. His approach to originalism in that case, she said, was “wrong twice over” and suggested that it overemphasized the role of historical comparison. Justice Thomas had argued that a “firm grounding in traditional trademark law is sufficient to justify the content-based trademark restriction here.”

Justice Barrett argued the court should do more than simply look at whether the law had a historical analog. Instead, she said: “I would adopt a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech.” She added that “the absence of founding era evidence does not mean that content-based trademark registration restrictions are inherently suspect.”

A similar criticism of Justice Thomas’s originalism was hinted at in a concurrence Justice Barrett wrote in U.S. v. Rahimi. That case saw an eight-justice majority holding that the court’s precedent in Bruen v. New York State Rifle and Pistol Association didn’t preclude Congress from prohibiting domestic abusers from possessing firearms. The court in Bruen held that gun control laws should be evaluated in light of the history and tradition of firearm regulation in the United States.

Justice Thomas, who authored the opinion in Bruen, was the lone dissenter in Rahimi and argued that “not a single historical regulation” justified a federal law prohibiting possession among domestic abusers.

Like her concurrence in Vidal v. Elster, Justice Barrett’s opinion in Rahimi indicated she sought a more expansive approach to originalism whereby the court should do more than find historically similar laws to support current ones. “Historical regulations reveal a principle, not a mold,” she said.

Limited Opinions for Trump

Before her second term, both she and another Trump appointee, Justice Brett Kavanaugh, were among those who declined to hear a Republican-brought lawsuit related to the 2020 presidential election.

When it came to the 2024 election, Justice Barrett joined the court’s unanimous ruling opposing Colorado’s decision to remove President Trump from the ballot. Her concurrence was unique in that it attempted to distance herself from both the conservative justices’ reasoning and the liberal justices’ rhetoric.

“Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she said in an apparent jab at the liberal justices’ concurrence written by Justice Sonia Sotomayor. Justice Sotomayor had chastised the majority by saying among other things, that it attempted “to insulate all alleged insurrectionists from future challenges to their holding federal office.”

The associate justice’s words stood apart in their focus on the court’s public image rather than the legal merits of a particular case. Former federal prosecutor Neama Rahmani told The Epoch Times that Justice Barrett’s statement was something that he had never seen in his more than 20 years of practice.

Justice Barrett agreed with the liberal justices’ conclusion that the majority went too far in specifying that Congress must be the one to enforce Section 3 of the 14th Amendment, which bars insurrectionists from holding office. Justice Barrett wasn’t specific on enforcement while the three liberal justices indicated federal courts could enforce the provision.

She is somewhat unique in that most of her legal career prior to joining the court was in academia. Other justices like Justices Ketanji Brown Jackson, Sotomayor, and Samuel Alito spent considerable time as judges in various federal circuits.

Prior to joining the Supreme Court in 2020, Justice Barrett joined the U.S. Court of Appeals for the 7th Circuit in 2017. She also spent time clerking for federal judges, including former Justice Antonin Scalia.

Former Michigan Solicitor General John Bursch told The Epoch Times that “when you spent all of your life as a professor, and only two years on the court of appeals, you might have a tendency to require perfection from cases procedurally before they get to you at the Supreme Court.”

Bursch, who serves as vice president of appellate advocacy at Alliance Defending Freedom, also said: “I think, coming from a law school pedigree and then going straight to the bench. There’s a higher emphasis on cordiality.”

Immunity and Jan. 6

Two of the most-watched decisions from the term also showed her diverging from her conservative colleagues on cases involving Jan. 6.

In July, she agreed with her conservative colleagues in upholding criminal immunity for Trump but did so in a more limited way than they did.

Justice Barrett’s concurrence pushed back on the idea that juries shouldn’t hear evidence involving immune acts, stating that the “Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

Chief Justice John Roberts wrote in the majority opinion that allowing juries to consider that evidence would defeat the purpose of immunity.

“That proposal threatens to eviscerate the immunity we have recognized,” he said. “It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”

That decision emanated from Trump’s ongoing election interference case in Washington, where he is charged in relation to various activities leading up to and on Jan. 6, 2021.

Special Counsel Jack Smith’s prosecution of him and other Jan. 6 defendants has been criticized for its controversial application of a financial reform law that the Supreme Court considered earlier this year.

In that decision, Justice Barrett swapped with her liberal colleague, Justice Jackson, and wrote the dissent with the backing of Justice Sotomayor and Justice Elena Kagan. She accused Justice Jackson and the court’s conservatives of doing “textual backflips” to avoid letting the statute apply to Jan. 6 defendants.

The majority, which included each of the five other conservative justices, held that prosecutors had to do more to sufficiently allege a section of the law prohibiting obstruction of an official proceeding. Smith’s team had argued that the provision’s use of the word “otherwise” allowed them to allege obstruction without conduct named in a preceding section. The majority disagreed.