As Amy Coney Barrett sat for her confirmation hearing in 2020, liberal activists paraded around the U.S. Capitol dressed in robes from the dystopian streaming series “The Handmaid’s Tale,” and the Senate Democratic leader accused her of holding “far right views.”
Now in her fourth term on the high court, Justice Barrett is surprising legal analysts with her rulings, in which she has shown a willingness to forge a path different from the court’s most conservative members.
That includes one ruling last week in which she broke from other Republican appointees on the government’s prosecution of Jan. 6 defendants and another in which she refused to go as far as the other GOP appointees on granting immunity to presidents.
“I think she was never that conservative to begin with,” said Josh Blackman, a professor at South Texas College of Law who has closely watched Justice Barrett’s opinions this term.
She often ends up siding with the other Republican appointees, but will write her own opinion describing how she arrived at her conclusion — and at times vehemently disagreeing with conservative giants, such as Justice Clarence Thomas.
Adam Feldman, a Supreme Court scholar who tracks trends at his EmpiricalSCOTUS blog, said Justice Barrett started off more on the right in her early days as a justice, including joining the 2022 opinion that overturned Roe v. Wade.
But now she “probably falls somewhere in the middle of the court,” Mr. Feldman said.
“It’s not exactly the same justice who was so clearly in the majority in Dobbs,” he said. “We are seeing a little bit of distance between her and Thomas. In other cases, between her and [Justice Samuel A.] Alito. I think she is probably a little bit more moderate, the extent to which we don’t truly know yet.”
Her dissent in this term’s Fischer v. United States case is drawing attention. She led two Democratic appointees — Justices Sonia Sotomayor and Elena Kagan — in voting to approve the Justice Department’s attempt to use an Enron-era document-shredding law against protesters who stormed the U.S. Capitol on Jan. 6, 2021.
But it’s her writings — even those that agree with the court’s conservative majority — that are drawing the most scrutiny.
She signed on to Monday’s historic case granting former President Donald Trump some immunity from criminal prosecution for his actions in office, but said her GOP colleagues shouldn’t have gone as far as they did in limiting what prosecutions can be brought.
“The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge,” she wrote. “A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.”
In another Trump-related decision earlier this term, she signed onto a ruling that Colorado was wrong to disqualify the former president from its ballot. But she again chided her fellow GOP appointees for going beyond that limited reasoning.
In United States v. Rahimi, this year’s key ruling on gun rights, she joined with most of the court in finding that the Second Amendment allows someone under a domestic violence protection order to be stripped of firearms, at least temporarily. Only Justice Thomas dissented.
Mr. Blackman pointed out that Justice Barrett’s concurring opinion seemed to question the prevailing theory of originalism, one of the defining conservative legal approaches.
“So for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function,” she wrote.
Mr. Blackman said Justice Barrett demands a higher bar than her fellow GOP appointees when it comes to history and tradition, which means she sometimes ends up on different sides of a ruling.
“I think her mode is one of judicial restraint. I think she approaches cases with caution and hesitancy, and she will scrutinize standing, she will scrutinize all the facts, she will hold the lawyers to a very high burden,” he said.
“She is so afraid of getting something wrong that she won’t be an originalist,” he said.
Others see it differently.
Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his conservative legal blog Volokh Conspiracy that her opinion in the gun decision “reaffirms her originalist approach.”
And Elliot Mincberg, senior fellow at People For the American Way, which opposed Justice Barrett’s nomination as too extreme, said she still sides with the conservative majority in high profile cases.
“She clearly is extremely conservative, but does see certain areas where some members of the court go too far,” Mr. Mincberg said. “I think that she may be a tad more independent in some ways than some people thought she was going to be. How that plays out in future cases depends on what those cases are.”
Mr. Trump nominated Justice Barrett to the court in the fall of 2020 after the death of Justice Ruth Bader Ginsburg.
Her nomination (the third of the Trump administration) enraged Democrats, who said it should have been delayed until after the election. They also worried she would tilt the court’s balance far to the right, and compared her to the late Justice Antonin Scalia, a conservative stalwart.
She discounted those comparisons.
“If I were confirmed, you’d be getting Justice Barrett, not Justice Scalia,” she told the Senate Judiciary Committee.
No Democratic senator backed her.
“The dogma lives loudly within you,” the late Sen. Dianne Feinstein told her.
Before joining the Supreme Court, Justice Barrett briefly served on the 8th U.S. Circuit Court of Appeals.
She spent most of her legal career as a law professor at a few universities since 2001. Shortly after she had graduated law school, Justice Barrett clerked for the late Justice Antonin Scalia and briefly worked in private practice for a few years.
“She is reading a brief like a law school exam,” Mr. Blackman said of her approach to cases.
With six Republican and three Democratic appointees on the court, legal scholars have pondered where the center lies now.
Mr. Feldman — in his end-of-year statistical report on the term — said Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh were the two who agreed with each other the most while voting in the majority, which he said reveals they’re “really at the front of the court’s business.”
Notably, they were also the ones who Justice Barrett agreed with most often among her colleagues. She agreed with Chief Justice Roberts 88% of the time and with Justice Kavanaugh 89% of the time.
She agreed with the three Democratic appointees slightly less than 70% of the time.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.