The conservative Supreme Court justice Trump can't rely on
Amy Coney Barrett shows signs of independence that could constrain the new administration
On September 26, 2020, then-President Donald Trump walked out to the Rose Garden to announce his choice to replace Supreme Court Justice Ruth Bader Ginsburg, who had died eight days earlier.
Accompanying him was Judge Amy Coney Barrett, a former Notre Dame law professor whom Trump had appointed to the Seventh Circuit Court of Appeals in 2017.
Introducing his nominee before an invited audience, Trump noted Barrett’s commitment to interpreting the Constitution “as written”, in the tradition of the late Justice Antonin Scalia, for whom she had clerked.
“As Amy has said, ‘Being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you.’ That is exactly why Judge Barrett will be on the Supreme Court.”
That could also be why Justice Barrett may prove to be a problem for Trump.
Last week, Barrett was the only one of the three Trump appointees to vote against an urgent request from the president-elect. She joined with Chief Justice John Roberts and the court’s three liberal justices in refusing to stop his sentencing in a New York court Friday for the 34 felony counts arising from the concealment of his payment to Stormy Daniels.
The court gave two reasons for its denial of Trump’s bid for a stay:
First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.
There are likely more consequential cases coming once Trump is sworn in.
A justice casting a skeptical eye on cases involving the new administration could stymie some of Trump’s ambition to expand the limits of presidential power.
“You are there to … follow the law wherever it may take you.” — Amy Coney Barrett
Daylight
It wasn’t the first time that Barrett, the youngest member of the court, had taken a stance that showed some daylight from the views of the court’s most conservative justices. In the last term, Barrett was the most likely of the six conservatives to vote for a position taken by the court’s liberals, according to an analysis by professors at Washington University and Penn State.
Still, she is by no means a liberal or even a moderate. Barrett cast one of the five votes to overturn Roe. v. Wade in 2022 and has generally sided with her fellow conservatives.
But in some of her concurrent opinions, Barrett has striven to distance herself from positions taken by Justices Clarence Thomas and Samuel Alito, generally the most conservative members. In Bruen v. New York, the court struck down New York state’s stringent gun control law, arguing that “modern firearms regulations” must be “consistent with the Second Amendment’s text and historical understanding.”
In her concurrent opinion and in some later remarks, Barrett took pains to qualify her buy-in to the idea of using historical analysis as a basis for constitutional interpretation.
Dissent
In late June, Barrett dissented from a decision that limited prosecutors’ ability to levy obstruction charges against Capitol rioters on January 6, 2021.
On July 1, Roberts led the court’s conservatives in a sweeping declaration that presidents have immunity from criminal prosecution when acting in their official capacity. The ruling in Trump v. United States defanged the prosecutors seeking to hold the former president accountable for allegedly setting the stage for the events of January 6 and mishandling classified documents.
Barrett joined the majority opinion in part, but wrote, “Properly conceived, the president’s constitutional protection from prosecution is narrow.” She also pointed out that some of the allegations against Trump did not involve his official conduct:
“For example, the indictment alleges that the President ‘asked the Arizona House Speaker to call the legislature into session to hold a hearing’ about election fraud claims. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
It takes two
There’s a risk of exaggerating Barrett’s significance as a potential obstacle for Trump’s policies on the current court, since the liberal justices would need her vote and that of another conservative, such as Roberts, Neil Gorsuch or Brett Kavanaugh, to put together a majority on any given issue. But the unpredictable nature of her role could one day loom large.
After Barrett was introduced by Trump on that September day a little more than four years ago, she paid tribute to Ruth Bader Ginsburg.
“The flag of the United States is still flying at half-staff in memory of Justice Ruth Bader Ginsburg to mark the end of a great American life. Justice Ginsburg began her career at a time when women were not welcome in the legal profession. But she not only broke glass ceilings, she smashed them. For that, she has won the admiration of women across the country and, indeed, all over the world…”
“Particularly poignant to me was her long and deep friendship with Justice Antonin Scalia, my own mentor. Justices Scalia and Ginsburg disagreed fiercely in print without rancor in person. Their ability to maintain a warm and rich friendship, despite their differences, even inspired an opera.”
Let’s see what the next act brings.
If SCOTUS is ever to regain the lost trust of the nation, Barrett and other conservatives will have to step up. Your excellent analysis gives me a little ray of hope.
Rich -- Barrett a fascinating individual: proper, decorous and classically conservative but willing to take a high court nomination from a president who represents the opposite. (Who could blame her, though, to be fair?) Kavanaugh is my bet for stealth softie. Next act, as you say. Another insightful piece. Many thanks.