Supreme Court Judge Amy Coney Barrett most often aligned with Clarence Thomas and Neil Gorsuch during her first few months on the bench. Yet as the court enters the final weeks of its annual session, Barrett also separates from the right-wing brethren with a lower touch and distraction.
By adopting the legal method of his mentor, the late Judge Antonin Scalia, Barrett avoided the flamethrower rhetoric that defined him and some of his supporters today.
Among the cases heard in oral argument and already resolved this quarter, she voted 100% with Thomas and Gorsuch. But there are many other cases to be decided and she has not quite aligned with these two judges on the emergency requests decided without a briefing or full argument. In a death penalty case, Barrett broke with his right-wing colleagues by signing a notice from Liberal Judge Elena Kagan that barred Alabama from executing a convict without its pastor present.
For decades the High Court was ideologically divided 5-4, conservative-liberal, and the most pronounced conflicts boiled down to differences between these two camps.
Now that Barrett has succeeded the late Liberal Ruth Bader Ginsburg and the court is divided 6-3, such tensions certainly persist, but an intriguing subplot emerges as the six right-wing judges, led by Chief Justice John Roberts , navigate between them.
So far, Barrett’s votes with Thomas and Gorsuch have revealed loyalty to the method of textualist interpretation more than to a particular result. This was seen, for example, in a case last week that found the conservative trio in tune with the court’s three remaining liberal judges to favor a Guatemalan immigrant fighting deportation.
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Barrett’s model so far contrasts with that of Judge Brett Kavanaugh, who in the Conservative bloc has mostly sided with Roberts in the center-right. The differences between the new people appointed by former President Donald Trump could manifest in the major cases to be decided in the next two months, on the law on affordable care, voting rights and religious freedoms when tested against LGBTQ interests, as well as the next session in a Second Amendment gun rights case is already on the calendar.
The judges are also considering an abortion rights case for the 2021-2022 period that would further shed light on Barrett’s brand of conservatism.
In her confirmation hearings last October, Lindsey Graham, then President of the Senate Judiciary, a Republican from South Carolina, highlighted Catholicism and Barrett’s position on reproductive rights: “This is the first time in American history we call a shameless pro-life woman. and embraces his faith without excuses. She told senators that she would rule on the basis of facts and law, not her personal preferences.
Barrett’s confirmation by the Senate, out of a 52-48 vote, greatly enhanced the gravitational pull of the right wing.
The 49-year-old former U.S. appeals judge and University of Notre Dame law professor voted decisively in disputes over challenges to Covid-19 restrictions affecting churches and synagogues – rejecting the restrictions – and his presence likely led the court to announce last. week that he would hear a call for broader Second Amendment rights, after refusing for more than a decade to solve a major gun regulation challenge.
Kavanaugh has stepped aside since his 2018 appointment to Roberts. The Chief and Kavanaugh have shared some of the highest voting lineups in the past three years, according to statistics compiled by SCOTUSblog.
Yet statistical unit models do not go far.
In several important cases where Roberts joined the liberal side, Kavanaugh remained with the right wing, as seen in disputes over the Trump administration’s attempt to add a citizenship question to the census form, its efforts to roll back protections for undocumented immigrant youth brought to the United States as children; and a controversy over abortion rights in Louisiana.
Roberts provided the Liberals with a fifth vote to seal the result, rejecting the Trump administration’s positions, while Kavanagh dissented.
Barrett’s votes and opinions in the coming weeks will add dimension to his record at the end of his first term.
In the weeks of oral argument that ended on Tuesday, Barrett’s approach was demanding. She asked probing questions from both sides.
Last week, when judges heard a First Amendment dispute over when schools – which are allowed to discipline students for disruptive speech on campus – can punish bothersome speech off campus, Barrett focused on extracurricular scenarios involving bullying and cheating.
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She also expressed concern about excessive discipline, including in this case, involving a then 14-year-old Pennsylvania cheerleader who, after failing to make the varsity team, expressed her frustration in a Snapchat post filled with profanity.
“I think harassment, bullying and I think threats of violence against school and cheating are all things that would be of concern,” Barrett said, but also observed that schools have been known to abuse of their authority and “punish things that do not cause substantial disruption or political or religious discourse that they should not.” ”
Immediately after his confirmation at the end of October, Barrett took over the spacious rooms that had been occupied by Ginsburg. The New Justice has divided its time between Washington and South Bend, Indiana, but recently sold the family home there in anticipation of a move to the Washington area, according to the South Bend Tribune.
She declined interview requests and has not made any public appearances since taking office.
The most recent judge, however, signed a major book deal with Sentinel, a conservative imprint of Penguin Random House that published Republican U.S. Rep. Mitch McConnell of Kentucky, Marco Rubio of Florida, and Mike Lee of Utah. Politico reported that Barrett received a $ 2 million advance, but neither she nor court officials have commented on the case and CNN has not confirmed details of the deal.
Barrett has voted so far in just a dozen cases that have been debated. This is where she has always been with Thomas and Gorsuch.
None of the decisions were blockbusters. They expressed their dissent, along with Judge Samuel Alito, in a first controversy over the Railroad Retirement Act. The majority, which consisted of Roberts, Kavanaugh and the three remaining Liberals, allowed judicial review of the adverse actions of the US Railroad Retirement Board in disability benefit litigation.
Last week Thomas, Gorsuch and Barrett were in a majority with the three Liberals for a textualist interpretation of a government requirement for notification of eviction hearings. Roberts, Kavanaugh, and Alito were dissenters.
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Barrett and Kavanaugh have attached an opinion together, as the High Court responded to an emergency request from the South Bay United Pentecostal Church. The church has opposed California’s Covid-19 capacity limits on indoor worship services.
The Tory majority largely blocked California restrictions in February. Thomas and Gorsuch have completely sided with the church. But Barrett, joined by Kavanaugh, preferred to keep in place a ban on singing and singing during indoor services.
“As the case comes to us,” Barrett wrote, “it remains unclear whether the singing ban applies at all levels (and therefore is neutral and generally enforceable law) or whether it favors certain sectors (and thus triggers a more in-depth examination). Of course, if a backing vocalist can sing in a Hollywood studio but not in her church, California’s regulations cannot be considered neutral.
Barrett has drafted two opinions for the court so far, one in a water dispute between Florida and Georgia (decided unanimously for Georgia) and the other testing an exemption from the law on freedom of information for documents related to the “deliberative process” leading to policy development.
The Sierra Club had requested documents relating to consultations the Environmental Protection Agency had undertaken with the US Fish and Wildlife Service and the National Marine Fisheries Service as the EPA proposed new regulations for structures used to cool industrial equipment. (Such intake structures can trap and kill aquatic fauna.)
A lower court ruled that the draft organic opinions resulting from the consultation were not part of the exemption and should be made public.
In Barrett’s drafted decision overturning the lower court, the judges, by a 7-2 vote, interpreted the exemption broadly and gave agencies more leeway to withhold documents deemed “pre-sentence and deliberative.”
“What matters,” she wrote, “is not whether a document is the last in line, but whether it communicates a policy the agency has set its sights on.”