As the Supreme Court finishes out the final few weeks of its term, Amy Coney Barrett will give court watchers a better idea of what sort of justice she is shaping up to be.
Barrett, who was confirmed following Justice Ruth Bader Ginsburg’s death last September, has sided reliably with conservatives in the dozen cases argued before the court in which she has cast a vote. But, as the justices prepare to release their decisions on a series of issues, including free speech, healthcare, and religious liberty, Barrett still has the potential to surprise.
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The justice has already shaken up the court in a series of decisions handed down through its so-called shadow docket, that is, orders given in cases not argued before the body. Barrett, for instance, swung the court right on coronavirus church restrictions shortly after joining the court, overruling Chief Justice John Roberts’s opposition. Barrett also played a key role in the court’s decision last month to take up the first major Second Amendment case in decades.
But on other matters, Barrett has diverged from her conservative colleagues. She joined the liberal wing of the court in February to halt the execution of an Alabama man who was requesting the presence of his pastor. And last week, along with Justices Clarence Thomas and Neil Gorsuch, she joined the liberals to halt the deportation of an illegal immigrant from Guatemala.
The diversity in Barrett’s votes so far pushes back against the fears that many Democrats expressed during her confirmation hearings that she would be an ideologue. Many Senate Democrats warned during the confirmation battle that Barrett would be the decisive vote in a case seeking to strike down Obamacare.
But as the term wraps up, Carrie Severino, president of the Judicial Crisis Network, a conservative group that campaigned for Barrett’s confirmation, told the Washington Examiner she believes Barrett will remain consistent with her promise to read the Constitution without partisan bias.
“Justice Barrett made clear during her confirmation that she believed the role of a judge is to interpret the Constitution and the laws as they are written,” she said. “I expect she will do exactly that.”
For Barrett, that has meant leaning heavily on the originalist methods of her mentor, the late Justice Antonin Scalia. But Barrett, who clerked for Scalia, has also been careful to distinguish herself from him, telling Sen. Lindsey Graham during her confirmation hearings that she would not be the “female Scalia.”
“You would not be getting Justice Scalia,” she said. “You would be getting Justice Barrett.”
In some undecided cases, however, the way in which Barrett’s thought has been shaped by Scalia could spell disappointment for conservatives. The most prominent of these is Fulton v. Philadelphia, a case that pits a Catholic-run foster care agency against a city law banning such groups from denying service to gay and transgender couples.
The court is poised to rule for the foster care agency, leaning on precedent set by similar high-profile religious liberty cases, but people familiar with the case expect a limited victory. This is, in part, because during arguments, several conservative justices made clear that they were hesitant to overturn Employment Division v. Smith, the landmark 1990 decision that established that, in general, religious institutions should not receive carve-outs to broadly applicable laws.
That opinion, written by Scalia, caused an uproar among social conservatives and led to the 1993 passage of the Religious Freedom Restoration Act, which in recent years many Christian institutions have invoked to shield themselves from laws that favor gay and transgender interests. Several religious liberty advocates told the Washington Examiner that they hope that in Fulton, the court will strike down Smith.
But in her questions during the case’s arguments, Barrett said she was skeptical of that idea. The justice devoted nearly all of her speaking time to the case, challenging the attorney representing the Catholic foster care agency to prove that its legitimacy was even in question.
“Why should we even entertain the question whether to overrule Smith?” Barrett asked at one point.
And in a Mississippi abortion case awaiting acceptance at the court, Barrett has become a source of speculation and frustration for conservatives who want to see movement on the case. The case, which represents a challenge to the abortion status quo set by Roe v. Wade and Planned Parenthood v. Casey, needs for yes votes at the court’s weekly Friday conferences to be accepted for arguments.
It has been listed for discussion at these conferences for almost the entire term without any decision. That could mean a number of things, but one theory that has dogged conservatives is that only three of the court’s six conservative justices are willing to give it the green light. Whether Barrett would be among them is unknown.
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If the court tosses the case, it will be a blow to the conservative legal movement, which for decades has sought to overturn Roe.
“If the Court ends up failing to grant certiorari, I will be deeply disappointed in the conservative justices who failed to provide the needed votes,” wrote Ed Whelan, a prominent conservative legal scholar.
