As Amy Coney Barrett sat for her confirmation hearing in 2020, liberal activists paraded around the U.S. Capitol dressed in robes from the dystopian streaming series “The Handmaid’s Tale,” and the Senate Democratic leader accused her of holding “far-right views.”
Now, in her fourth term on the high court, Justice Barrett is surprising legal analysts with her willingness to forge a different path from the court’s most conservative members.
She broke from other Republican appointees last month on the government’s prosecution of Jan. 6 defendants and refused to go as far on granting immunity to presidents.
“I think she was never that conservative to begin with,” said Josh Blackman, a professor at South Texas College of Law who has closely watched Justice Barrett’s opinions this term.
She often sides with the other Republican appointees but writes her own opinions describing how she arrived at her conclusions. Sometimes, she vehemently disagrees with conservative giants such as Justice Clarence Thomas.
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Adam Feldman, a Supreme Court scholar who tracks trends at his “Empirical SCOTUS” blog, said Justice Barrett was more on the right in her early days as a justice when she joined the 2022 opinion that overturned Roe v. Wade.
Now, she “probably falls somewhere in the middle of the court,” Mr. Feldman said.
“It’s not exactly the same justice who was so clearly in the majority in Dobbs,” he said. “We are seeing a little bit of distance between her and Thomas. In other cases, between her and [Justice Samuel A.] Alito. I think she is probably a little bit more moderate, the extent to which we don’t truly know yet.”
Her dissent in Fischer v. United States has drawn attention. She led two Democratic appointees, Justices Sonia Sotomayor and Elena Kagan, in voting to approve the Justice Department’s attempt to use an Enron-era document-shredding law against protesters who stormed the U.S. Capitol on Jan. 6, 2021.
It’s her writings, even those that agree with the court’s conservative majority, that are drawing the most scrutiny.
She signed on to the historic case granting former President Donald Trump some immunity from criminal prosecution for his actions in office but said her Republican colleagues should have given less restraint to what prosecutions could be brought.
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“The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge,” she wrote. “A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.”
In an earlier Trump-related decision, she signed on to a ruling that Colorado was wrong to disqualify the former president from its ballot but chided her fellow Republican appointees for going beyond that limited reasoning.
In United States v. Rahimi, a key ruling this year on gun rights, she joined the majority in finding that the Second Amendment allows someone under a domestic violence protection order to be stripped of firearms, at least temporarily. Only Justice Thomas dissented.
Mr. Blackman noted that Justice Barrett’s concurring opinion seemed to question the prevailing theory of originalism, one of the defining conservative legal approaches.
“So, for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function,” she wrote.
Mr. Blackman said Justice Barrett demands a higher bar regarding history and tradition, sometimes putting her on different sides in rulings from other Republican appointees.
“I think her mode is one of judicial restraint. I think she approaches cases with caution and hesitancy, and she will scrutinize standing, she will scrutinize all the facts, she will hold the lawyers to a very high burden,” he said.
“She is so afraid of getting something wrong that she won’t be an originalist,” he said.
Others see it differently.
Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his conservative legal blog, “Volokh Conspiracy,” that Justice Barrett’s opinion on the gun decision “reaffirms her originalist approach.”
Elliot Mincberg, senior fellow at People for the American Way, which opposed Justice Barrett’s nomination as too extreme, said she still sides with the conservative majority in high-profile cases.
“She clearly is extremely conservative, but does see certain areas where some members of the court go too far,” Mr. Mincberg said. “I think that she may be a tad more independent in some ways than some people thought she was going to be. How that plays out in future cases depends on what those cases are.”
Mr. Trump nominated Justice Barrett to the court in the fall of 2020 after the death of Justice Ruth Bader Ginsburg.
Her nomination, the third of the Trump administration, enraged Democrats, who said it should have been delayed until after the election. They also worried that she would tilt the court’s balance far to the right and compared her to Justice Antonin Scalia, the late conservative stalwart.
She discounted those comparisons.
“If I were confirmed, you’d be getting Justice Barrett, not Justice Scalia,” she told the Senate Judiciary Committee.
No Democratic senator supported her nomination.
“The dogma lives loudly within you,” said Sen. Dianne Feinstein, California Democrat.
Before joining the Supreme Court, Justice Barrett briefly served on the 8th U.S. Circuit Court of Appeals.
Since 2001, she has spent most of her legal career as a law professor at a few universities. Shortly after graduating from law school, Justice Barrett clerked for Justice Scalia and briefly worked in private practice for a few years.
“She is reading a brief like a law school exam,” Mr. Blackman said of her approach to cases.
With six Republican and three Democratic appointees on the court, legal scholars have pondered where the center lies now.
In his end-of-year statistical report on the term, Mr. Feldman said Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh were the two who agreed with each other the most while voting in the majority, which he said reveals they are “really at the front of the court’s business.”
They were also the ones with whom Justice Barrett most often agreed among her colleagues. She agreed with Chief Justice Roberts 88% of the time and with Justice Kavanaugh 89% of the time.
She agreed with the three Democratic appointees slightly less than 70% of the time.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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