Analysis: Barrett finds his own voice at the center of the conservative US Supreme Court


WASHINGTON, July 2 (Reuters) – Justice Amy Coney Barrett forged her own course during her rookie tenure on the United States Supreme Court, helping a Conservative majority win in major cases while sometimes defying expectations after critics last year tried to portray her as a right-wing Zealot.

Her record suggests she joined the center of a court with a conservative 6-3 majority rather than her right flank, often associated with justices Clarence Thomas, Samuel Alito and Neil Gorsuch. As such, she seemed to be on the same ideological wavelength as two other Conservative colleagues, Chief Justice John Roberts and Justice Brett Kavanaugh.

Former Republican President Donald Trump has appointed Barrett to replace Liberal Judge Ruth Bader Ginsburg, who died in September. After tense confirmation hearings, Barrett was confirmed by the Senate in October, with no Democrats backing her. Democrats even boycotted the Judiciary Committee’s vote on sending his nomination to the full Senate.

“During her confirmation hearings, Justice Barrett said she would be her own justice,” said Allyson Ho, a Dallas-based lawyer who has argued cases in the Supreme Court.

“And so far,” Ho added, “that’s exactly what she’s been doing.”

Barrett enjoyed a first single term as judges heard oral argument via teleconference with the courthouse closed to the public amid the COVID-19 pandemic. Barrett was a sharp but polite questioner during these arguments.

It has reinforced the inclination to the right of the court, as shown by major affairs decided along ideological lines.

These included two 6-3 decisions on Thursday in which the Tory majority in an Arizona case gave states more leeway to pass voting restrictions while overturning a disclosure requirement for charitable donors in California, which could erode campaign finance disclosure laws.

Barrett was part of another 6-3 ideologically-based decision on June 23 limiting the ability of union organizers to enter agricultural businesses in California, another setback for organized labor.


Important cases await Barrett during the court’s next term, which begins in October. His vote could be crucial in cases that could restrict abortion rights and extend the right to carry a gun outside the home.

Based on his first term, some court observers have suggested that there is now a sort of 3-3-3 divide between liberals, compromise-ready conservatives, and more die-hard conservatives. Voting statistics seem to confirm this. Barrett, Kavanaugh and Roberts were the three most frequently majority judges in judgments during term of office, according to statistics kept by SCOTUSblog.

Pratik Shah, a Washington lawyer who has also argued cases before judges, said there is evidence Barrett and Kavanaugh sought compromises, but questioned whether that would be true in the long run.

“For me, the jury is still very far from Judge Barrett,” Shah added, noting that the Conservative majority should stick around for years and need not act quickly.

During her struggle for confirmation, some leftist critics cited Barrett’s devout Catholic beliefs and conservative scholarly writings as predicting that she would easily overturn legal precedents and endanger recognized personal rights such as abortion. Instead, Barrett in some key cases has chosen a different path than his more conservative colleagues.

On June 17, judges unanimously ruled against Philadelphia for banning a Catholic agency from participating in the city’s foster care program because it refused to consider same-sex couples as parents of ‘Home. The ruling could open the door to discrimination against LGBT people by religiously-based social service agencies.

But six justices, including Barrett, dismissed a call to go further and overturn a 1990 Supreme Court precedent known as the Division of Jobs v Smith, which maintains neutral and generally enforceable laws even though they impose a burden on religion. Barrett, in a separate opinion, wrote that she sees “no reason to decide in this case whether Smith should be rescinded, let alone what should replace him.”

Mark Rienzi, a lawyer with the Becket Fund for Religious Liberty legal group, said Barrett’s writings on religious issues have shown “that she is a cautious thinker who takes the job seriously.”

In one of many rulings in favor of religious challenges to the pandemic restrictions, Barrett wrote a separate opinion in February rejecting a proposal by a California church to lift the state’s ban on singing and singing during Services. The church, Barrett wrote, has failed to demonstrate that it is entitled to such relief. Gorsuch, Thomas and Alito disagreed with her on this point.

Barrett was in the majority in a 7-2 decision on June 17 against a Republican-led bid to repeal the Obamacare healthcare law. During her Senate confirmation hearings, some Democrats warned she would vote to repeal the law if upheld.

She wrote four rulings in cases argued during tenure and three dissent. In another example of the court ruling that does not go in the ideological direction, Barrett drafted a 6-3 ruling on June 3 limiting the scope of a computer fraud law, joined by the court’s three liberals as well as by the two other people named by Trump, Kavanaugh and Gorsuch.

Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham

Our Standards: Thomson Reuters Trust Principles.


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