BARRETT NO CONSERVATIVE HANDMAID
Justice Amy Coney Barrett is turning out to be the most intriguing — and to some extent, surprising — of the nine Supreme Court justices.
Now in her fourth term on the bench, Barrett is certainly no liberal. As expected, she voted to eliminate the constitutional right to abortion. That was not a one-off; Barrett has also joined majorities to dramatically expand gun rights, limit affirmative action and curtail the power of regulatory agencies.
Nor is she in danger of disappointing conservatives in the mode of a Harry A. Blackmun, John Paul Stevens or David Souter, Republican nominees who turned out to be reliable liberal votes.
Still, benchmarking Barrett against her conservative colleagues — and against expectations at the time she was confirmed — she has been what passes for a pleasant surprise since being named to replace Justice Ruth Bader Ginsburg in 2020. Barrett’s longstanding ties to a conservative Catholic group, People of Praise, raised warnings that she would be an eager handmaid to the conservative male majority; in reality, Barrett has been no submissive pushover and her judicial opinions have shown her to be more cautious technocrat than ideological fence-swinger.
She has emerged as a member of what amounts to the more moderate wing, along with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh.
One early example: In a 2021 case involving a Catholic foster care agency that wouldn’t place children with same-sex couples, Barrett balked at voting to overturn a religious freedom decision reviled by conservatives, saying there was “no reason to decide in this case whether [the precedent] should be overruled, much less what should replace it.”
In a thoughtful concurring opinion in the Biden student loan case, Barrett grappled with the liberal justices’ arguments that the conservative majority’s newly announced “major questions” doctrine limiting the power of federal agencies in the absence of clear congressional authorization was at odds with its professed commitment to textualism. She acknowledged that some broad articulations of the doctrine should give “pause” to an “honest textualist.”
Last month, in the 14th Amendment ballot disqualification case involving Trump, Barrett agreed that Colorado couldn’t remove the former president from the GOP primary ballot but said her conservative colleagues had gone too far in ruling — unnecessarily, in Barrett’s view — that federal legislation was necessary to enforce Section 3.
Last week, Barrett offered a decidedly different take than her fellow conservatives as the court heard oral arguments in another Trump case, this one about his assertion of absolute presidential immunity from prosecution for his official acts, and in an abortion case about whether a federal law requiring emergency “stabilizing” care for pregnant women preempts an Idaho law that criminalizes abortion except to save the life of the mother.
Barrett relentlessly drilled the lawyers representing Trump and Idaho about the contours of their arguments.
In the immunity case, Barrett tag-teamed with Justice Elena Kagan to obtain potentially significant concessions from Trump attorney D. John Sauer about actions Trump took as president that Sauer acknowledged could still be prosecuted because they constituted private acts. Barrett expressed incredulity at Sauer’s claim that the constitutional remedy of impeachment means that a president can only be criminally convicted if he is first impeached and removed from office.
“There are many other people who are subject to impeachment, including the nine sitting on this bench, and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment,” Barrett said. “So why is the president different when the impeachment clause doesn’t say so?”
Then she went in for the kill. Sauer was also arguing that a general criminal law can’t be invoked against a president unless it expressly covers him. “So how can you say,” Barrett countered, “that he would be subject to prosecution after impeachment while at the same time saying that he’s exempt from these criminal statutes?”
Well, Sauer said, some laws do explicitly mention the president.
“A few,” Barrett retorted. “Two or three.”
At which point she got to the outrageous get-out-of-jailfree essence of Sauer’s position.
“So just to pick up Justice Kagan’s example of a president who orders a coup, let’s imagine that he is impeached and convicted for ordering that coup,” she said. “You’re saying that he couldn’t be prosecuted for that, even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?”
This in an argument where Justice Samuel A. Alito Jr. fretted over whether Franklin D. Roosevelt could have been prosecuted for interning Japanese Americans in the 1940s. In which Kavanaugh, as if this were a Federalist Society event, used his time to read extensively from Justice Antonin Scalia’s dissent in Morrison v. Olson, the 1988 case upholding the independent counsel statute. In which Justice Neil Gorsuch proclaimed, “We are writing a rule for the ages.”
By contrast, Barrett focused on the here and now, and seemed to be searching for narrow grounds, not deciding more than was required by the case at hand. That shouldn’t be saying much — but with this aggressive conservative majority, it is.