WASHINGTON — Supreme Court Justice Sonia Sotomayor was hammering away at a lawyer defending Idaho's strict abortion ban when she got an unexpected assist from a conservative colleague − Amy Coney Barrett.
Sotomayor, a passionate liberal voice, had been trying to pin down when abortions are allowed in Idaho to protect the mother, and Barrett − though known for her staunch opposition to abortion − thought the pro-ban lawyer was hedging. So she jumped in.
“I'm kind of shocked, actually,'' she said. ''Because I thought your own expert had said below that these kinds of cases were covered. And you're now saying they're not?”
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Barrett’s focus on the record, even in a dispute where she may have been sympathetic to Idaho's objectives, may have been a turning point that day.
“I think that’s the moment Idaho lost the case,” said Josh Blackman, a law professor at South Texas College of Law Houston. “You can pinpoint to the second.” The court ended up reversing its January decision to temporarily block abortions for gravely ill women in Idaho and kept alive the fight over whether these emergency abortions are protected by federal law.
That case wasn’t the only time Barrett – the 52-year-old conservative who replaced progressive icon Ruth Bader Ginsburg in 2020 – stood out in a blockbuster and, at times, unpredictable term that ended this month.
In pivotal arguments over Donald Trump's claims of absolute immunity from prosecution, Barrett got Trump's lawyer to concede that some of his efforts to overturn the 2020 election weren't official presidential acts.
She clashed with fellow conservatives about their reliance on history to decide cases.
And Barrett overtook Chief Justice John Roberts as the Republican appointee casting the most liberal votes in divided cases, including on an air pollution control case and over whether defendants charged in the Jan. 6, 2021, attack on the Capitol can be prosecuted for obstructing Congress.
She also joined part of the liberal justices’ dissent on presidential immunity.
'I’m not saying Amy Coney Barrett will save us'
“I don't think anybody necessarily expected Amy Coney Barrett to be as distinctive as she has been so early in her term,” said Rakim Brooks, president of the liberal Alliance for Justice. “But she's going to be, to my mind, the person to look out for in the future.”
But Kate Shaw, a professor of law at the University of Pennsylvania Carey Law School, said it’s too soon to say how significant Barrett’s departures from her fellow conservatives will be.
“There have been very, very slight signals of Barrett moving ever so slightly out of lockstep with the male conservatives on the court,” Shaw said on the liberal Supreme Court podcast “Strict Scrutiny” she co-hosts. “I am noting those. I’m not saying Amy Coney Barrett will save us.”
Win for Trump, surprise on abortion:Takeaways from historic Supreme Court term
`Differences are far less important'
Midway through the term, when the court was still mostly handing down unanimous opinions in less ideologically charged cases, Barrett downplayed any political schism at the court.
The justices “all wear the same color black robe,” Barrett said at a public discussion with Sotomayor on how to respectfully navigate disagreements.
“I do think it's important to keep in mind that there are many more times that the court is in agreement,” she said.
Less than two weeks later, Barrett chided the court’s liberals for drawing attention away from the justices' unanimous decision to keep Trump on Colorado's ballot. She agreed with the liberals that the decision went further than necessary to protect Trump from future challenges. But she accused them of stridency in their concurring opinion.
“The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circ*mstance, writings on the Court should turn the national temperature down, not up,” Barrett wrote. “For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
But when the court bitterly divided on the issue of presidential immunity, Barrett agreed with the liberals that prosecutors should be able to introduce some of Trump’s official acts as evidence, even if they can’t be the basis for a criminal charge.
And while she signed onto the rest of the majority’s opinion, she tried to frame a president's protection from prosecution as narrow, including highlighting one of Trump's alleged acts – attempting to organize alternate slates of electors after his loss to Joe Biden – that she said deserves no immunity.
“It’s clear she did not want to go as far as the five other conservatives,” said Ilya Somin, a law professor at George Mason University.
Joining with the liberals
By the numbers, Barrett voted for the liberal outcome on 48% of divided cases with an ideological bent, according to an analysis by Lee Epstein and Andrew Martin of Washington University in St. Louis, and Michael Nelson of Penn State. That was the highest percentage among the Republican appointees.
Last term, Roberts ranked highest at 45%. Barrett and Justice Brett Kavanaugh tied for second at 41%.
On one divided case − the court’s 5-4 decision blocking enforcement of a federal plan to reduce pollution that drifts across state lines – Barrett wrote the dissenting opinion. She said the court is letting states continue to worsen ozone problems for other states based on an alleged procedural error by the Environmental Protection Agency that likely had no impact on the regulatory scheme.
Rachel Rothschild, an expert on environmental law at University of Michigan Law School, called Barrett’s dissent superb.
“It displays a clear understanding of EPA's technical analysis as well as the importance of federal oversight under this provision of the Clean Air Act, which covers interstate air pollution,” Rothschild tweeted. “She has the better of the statutory and technical arguments by far.”
(In an error corrected after the initial positing of the majority's opinion, Justice Neil Gorsuch mistakenly referred to the pollutant nitrogen oxide as "nitrous oxide," commonly known as laughing gas.)
Kannon Shanmugam, one of the nation’s leading Supreme court litigators, said Barrett is an "extraordinarily proficient technical judge" who "really cares about the facts and the procedural history."
"She really took the majority to task for not really digging into the facts and the underlying record," Shanmugam said on the "Advisory Opinions" podcast for the conservative outlet The Dispatch.
Barrett also had a pointed reprove for the conservative 5th U.S. Circuit Court of Appeals when writing the 6-3 opinion throwing out a conservative challenge to the Biden administration’s efforts to persuade Facebook and other social media platforms to remove what it viewed as misinformation.
She said the appeals court had relied on the trial court’s factual findings, “many of which unfortunately appear to be clearly erroneous.”
Dispute over the importance of history
A former Notre Dame law professor who clerked for the late Justice Antonin Scalia, Barrett also focuses heavily on the text of a statute.
When dissenting with two of the three liberals in the 6-3 decision on the Jan. 6 prosecutions−a case that prompted Justice Ketanji Brown Jackson to side with most of the conservatives − Barrett said the majority had done “textual backflips” to arrive at a conclusion contrary to the plain meaning of the obstruction statute.
That wasn't the only time she differed from her conservative colleagues on the best way to decide cases.
In two opinions – one about gun control and the other on trademarks − Barrett warned against the pitfalls of relying too narrowly on history and tradition to determine the original meaning of the Constitution.
“It’s clearly a theme of her jurisprudence that she's skeptical, and I think for good reason, of putting a lot of weight on history that was many years after the enactment of the relevant constitutional provision,” Somin said.
Standing out in oral arguments
In addition to her opinions, Barrett drew attention during several of the oral arguments.
During the presidential immunity discussion, for example, Barrett “acted more like a lawyer in a deposition than a Supreme Court justice when she pinned down Trump’s lawyers to concede that particular alleged acts did not amount to official conduct,” said Barbara McQuade, a law professor at the University of Michigan and a former U.S. attorney.
"Justice Barrett has shown an independent streak this term," McQuade said.
Blackman, an adjunct scholar with the libertarian Cato Institute who has been tracking Barrett for years, said he long suspected she is the most liberal of Trump’s three appointees.
“She’s more or less doing as I feared, expected,” he said.
Overall, Blackman sees a tendency from Barrett to be cautious in how far she thinks the court should go.
“I've always sensed that she just had a much higher threshold to act as a judge than perhaps Justice (Clarence) Thomas would,” Blackman said.
Liberal observers point to Barrett's votes this term to weaken regulatory agencies and her 2022 vote to overturn the constitutional right to an abortion – both huge wins for conservatives – as reminders that she can go big and is a sea change from Ginsburg.
But Brooks, of the Alliance for Justice, said Roberts may increasingly need to negotiate with Barrett if he needs a fifth vote on closely divided cases.
“She seems to be striking Sandra Day O'Connor's path, which is to be independent of her conservative brethren on some important questions, at least beginning to articulate her own philosophy,” Brooks said. “And I think that's refreshing.”
