How Fast Will Amy Coney Barrett Move the Supreme Court Right?

How Fast Will Amy Coney Barrett Move the Supreme Court Right? 1

The Supreme Court is about to have a week for the ages. On Monday, the justices will hear arguments about whether to allow a Justice Department suit to proceed against Texas’ near ban on abortion after six weeks of pregnancy. Two days later, they will consider a challenge to a New York restriction on who can carry a gun outside the home. These are blockbuster cases in which the court’s newly dominant conservative majority has the power to overturn precedent and alter the course of many Americans’ lives. The court is still readjusting after the most striking and consequential ideological shift in the 30 years since Justice Clarence Thomas, on the court’s far right, replaced Justice Thurgood Marshall, on its far left. This time, too, the departed member is a liberal (Justice Ruth Bader Ginsburg, who died just over a year ago), and the question is how far and fast the woman who moved into her chambers, Justice Amy Coney Barrett, will take the court in the opposite direction.

When Justice Barrett introduced herself to the country as President Donald Trump’s nominee in the Rose Garden last fall, the right celebrated her devotion to religion and her allegiance to the judicial philosophy of Justice Antonin Scalia, the archconservative for whom she had clerked. She inspired memes and coffee mugs and T-shirts. One anti-abortion writer crowned her a “new feminist icon.” She seemed perfectly positioned to be the religious right’s answer to the Notorious R.B.G., the celebrity persona that Justice Ginsburg embraced before her death.

But so far, Justice Barrett has not welcomed her celebrity status. “I don’t think she’s trying to be a persona in the way that some people on the right want,” John Inazu, a professor of law and religion at Washington University in St. Louis, told me. She rarely makes public appearances, keeping the low profile that’s traditional for junior justices.

In September, at her first speech since her confirmation, Justice Barrett expressed concern for the court’s image. “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said. (She picked an oddly mockable setting to make this case: an event hosted by a center at the University of Louisville named for one of her Republican backers, the Senate minority leader, Mitch McConnell, who introduced her.)

Justice Barrett has been low-key on the bench, too. Justice Neil Gorsuch, Mr. Trump’s first nominee, was far more aggressive out of the gate, correcting Chief Justice John Roberts at one of his first oral arguments and writing sweeping opinions that brim with self-certainty. Justice Barrett has written a total of eight opinions (the fewest among the justices last term). Her tone in writing and when she asks questions at arguments tends to be forthright but diplomatic. “We don’t know the full measure of Amy Coney Barrett yet,” said Melissa Murray, a law professor at New York University.

For this history-making term, which promises, along with the Texas and New York cases, major rulings on a 15-week near ban on abortion in Mississippi and on state funding for religious schools, Chief Justice Roberts clearly believes in protecting the court’s image by moving selectively, while Justices Samuel Alito, Gorsuch and Thomas have demonstrated a desire to rapidly transform American law. Justice Brett Kavanaugh, who joined the court two years before Justice Barrett, seems to be somewhere in between. So far, Justice Barrett has shown herself to be deeply conservative and a purposeful tactician. She hasn’t charged ahead on all fronts at once. But that may be because a bit of pacing — choosing with care when to make giant headlines — better serves her ideological goals.

The best evidence for Justice Barrett’s cautious strategy on the court is a brief opinion she wrote last June in a major case, Fulton v. City of Philadelphia. In 2018 a Catholic social services agency sued the city for not renewing its contract to place foster children. The government claimed the agency had violated its rules against discrimination by refusing to place kids with same-sex couples.

At stake in Fulton was the fate of an important precedent, the 1990 case Employment Division v. Smith. In Smith, the court held that the government could enforce a law against a religious group as long as it’s neutral and generally applies to everyone. The plaintiffs were Native American counselors at a drug rehabilitation clinic who took peyote for a religious ceremony, got fired from their jobs for breaking the law and lost their state unemployment benefits. Justice Scalia — Justice Barrett’s mentor — wrote the majority opinion denying the counselors’ claim that the state had violated their freedom to practice their religion.

In the years since Smith, religious-liberty advocates have come to see Justice Scalia’s ruling as a major barrier in need of overturning. It has posed a problem for groups like the Catholic social services agency in Philadelphia that don’t recognize same-sex marriage and thus discriminate against L.G.B.T.Q. people.

In Fulton, Justice Alito wrote a 77-page opinion that argued fiercely for overturning Smith. “As long as it remains on the books, it threatens a fundamental freedom,” he wrote on behalf of himself and Justices Gorsuch and Thomas. But the archconservative trio ended up in the minority. Justice Barrett, along with Justice Kavanaugh and the three liberals (Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor), joined a narrower ruling, written by Chief Justice Roberts, that favored the Catholic services agency only because its contract with the city allowed for exceptions to the nondiscrimination policy (though there was no record of an exception being granted).

The opinion left Smith untouched and Justice Alito enraged. “This decision might as well be written on the dissolving paper sold in magic shops,” he wrote, accusing the majority of leaving “religious liberty in a confused and vulnerable state.”

Only Justice Barrett responded to his critique. In a concurrence, she calmly made the case for going slow. It wasn’t clear to her what rule should replace Smith, she said — a significant issue for future cases in the lower courts. With all nine justices lining up in favor of the agency, she saw “no reason to decide in this case whether Smith should be overruled.”

She sounded careful and lawyerly — like a tinkerer rather than a warrior. “Justice Barrett has shown a little humility, which isn’t to be confused with timidity,” said Jonathan Adler, a law professor at Case Western Reserve University. “In Fulton, she’s writing in the vein of ‘maybe the court got something wrong in the past, but let’s not remake it overnight until we have to or we’re sure about what to do instead.’” This is the hallmark of what’s called judicial modesty, the idea that judges should be wary of sweeping rulings that could have unintended consequences. They should not go further than necessary to resolve the dispute before them.

Illustration by Andrei Cojocaru; Photographs by Anna Moneymaker and Erin Schaff/ The New York Times; Richard Sharrocks and Cameron Whitman, via Getty Images

In conservative circles, where judicial modesty has largely gone out of fashion, Fulton produced a ripple of concern. “There was a lot of energy pushing for Justice Alito’s argument,” said Richard Garnett, a close friend of hers who teaches at Notre Dame Law School, her alma mater, where she also spent 15 years on the faculty. “I thought the points she raised were welcome, but she and Justice Kavanaugh got beat up by my fellow religious-freedom advocates.”

The right has felt burned before, by Republican appointees like Justices Sandra Day O’Connor and David Souter, who moved to the center and left during their tenures. In his concurrence, Justice Gorsuch accused the court of cowardice in Fulton. His aim, argued Josh Blackman, a law professor at South Texas College of Law Houston, was to issue a “not-so-subtle warning” to Justices Barrett and Kavanaugh. In Justice Gorsuch’s words, “these cases will keep coming until the court musters the fortitude to supply an answer.” Why be modest when you have the votes to be bold?

How quickly the conservative majority decides to move will have significant political ramifications, in both the short and the long term. A year ago, when Chief Justice Roberts held sway, the court’s approval rating was on the rise, at 58 percent, close to its highest rating over the past two decades. In the time since Justice Barrett’s arrival changed the balance of power, public approval has dropped to 40 percent — a record low since Gallup has kept track.

In speaking out in September to defend the court, Justice Barrett said many of the same things that justices have said for decades. They don’t make decisions to (directly) benefit the political party that nominated them. Many of their (low profile) decisions are unanimous. They do something called law, which is different from politics. Justice Breyer recently rolled out similar talking points in interviews about his new book on the authority of the court.

The justices share an incentive to promote a vaunted status for the institution to which they devote their careers. But it’s harder for any of them to argue credibly that the court is above politics when a majority of justices who were all appointed by presidents of one party change the law in ways that fulfill the most cherished hopes of that party’s base.

In theory, lifetime appointments make the justices untouchable. Their job, in a sense, is to ignore the polls. But in practice, when the court veered sharply from popular consensus at previous points in American history, it had to correct course, at times with a hard push from the elected branches of government. Concerned that a majority of justices was destabilizing the Union and could block Reconstruction, Congress changed the number of justices on the court three times in the 1860s. President Franklin D. Roosevelt asked Congress to let him add six justices in the 1930s; the plan died only when a conservative justice changed sides in 1937 to uphold a New Deal law and another announced his retirement.

Seen in that light, Justice Barrett accomplished more on behalf of religious groups in Fulton than her critics give her credit for. She, Chief Justice Roberts and Justice Kavanaugh may have seen no reason to overrule Smith because they could make it fade away. As the New York Times writer Linda Greenhouse points out in her forthcoming book “Justice on the Brink,” the majority opinion in Fulton relied on a 1993 precedent that’s friendlier to religious-freedom claims than Employment Division v. Smith.

In that case, Church of Lukumi Babalu Aye Inc. v. City of Hialeah, the Supreme Court struck down a local ban on animal sacrifice based on evidence that it reflected hostility toward an Afro-Cuban religion. There was no similar evidence offered in Fulton that hostility toward religion animated Philadelphia’s nondiscrimination rule for foster care.

Still, with a “surgeon’s subtle dexterity,” Ms. Greenhouse writes, Chief Justice Roberts substituted Lukumi’s relatively low bar for winning a religious-freedom claim in place of the exacting standard in Smith. He wrote that since the contract with the city allowed for exceptions to the nondiscrimination policy, it was not a generally applicable law — and so Smith didn’t come into play.

The split in Fulton between the two conservative factions generated lots of heat, but it could really be a difference in tactics — whether to loudly or quietly create a rule that makes it easier for religious groups to win in court. Justice Barrett may think it’s worth slowing the pace of change to make it more durable, proposed Kate Shaw, a professor at Cardozo School of Law. A majority that says less may provoke less backlash and thus, in the end, accomplish more. “Do you explicitly overrule past rulings, including Roe, or do you go around them so what you’re doing is less obvious?” asked Leah Litman, a law professor at the University of Michigan.

One indication that Justice Barrett is being tactical rather than coming around to a genuinely Roberts-like approach is that she has been far bolder when she can work through what’s become known as the shadow docket. This is the court’s fast-track route for issuing orders without oral argument or fully reasoned and signed opinions. In the first decade of Chief Justice Roberts’s tenure, the court granted an average of a half dozen applications for relief through the shadow docket each term; last term, the number was 20. Justices Barrett and Kavanaugh sided against Chief Justice Roberts — forming a majority with Justices Alito, Gorsuch and Thomas — to end Covid restrictions on congregating in houses of worship in New York and California.

Justice Barrett signed onto these orders and others in which all six conservatives agreed (for instance, foiling the Biden administration on immigration reform and ending a national eviction moratorium) without writing a word. Under cover of the shadow docket, she flexed the power of the right without calling any attention to herself. Picking your forum is another mark of a strategist.

Oral arguments rarely affect the outcome of a case, but they can be revealing nevertheless, especially when the justices ask questions, ostensibly of the lawyers, that are really aimed at one another. Next week, analysts will parse Justice Barrett’s every word, and if she says little, they’ll move on to her glances and gestures. The scrutiny will intensify in December, when the court will hear its second major abortion case of the term: Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy.

In Dobbs, Mississippi has asked the justices to overturn Roe outright. Even if the court doesn’t go that far, it’s hard to imagine how the justices can uphold a near ban in the second trimester without dismantling or obviating much of abortion jurisprudence (which allows states to regulate abortion only if they don’t place an “undue burden” on a person’s right to the procedure). In tandem with the New York gun case, the abortion suit may force Justice Barrett to show her hand.

“I don’t think there’s a Fulton way out of this,” said Mr. Garnett, Justice Barrett’s old friend. He means there’s no narrow and coherent way to achieve conservative aims. About that, surely he’s right. A political explosion over abortion could consume the Supreme Court and the country in an election year.

But if there’s an issue that would tempt Justice Barrett to move aggressively, it’s abortion, given her longtime, well-documented condemnation of the procedure and the court’s protection of it. In 2006 she signed a letter accompanying a local newspaper ad that called for “an end to the barbaric legacy of Roe v. Wade,” and in 2013 she was one of only six full professors at her law school to sign a statement decrying Roe on its 40th anniversary. In Dobbs, she will have to choose between judicial modesty and taking the stand to which she appears most committed.

In her book, Ms. Greenhouse compares Justice Barrett (a Catholic mother of seven) to Phyllis Schlafly (a Catholic mother of six), who put her intellect and organizing skills into attacking abortion and gay rights and defeating the Equal Rights Amendment. Both figures have drawn power from being the rare woman with the power to realize the conservative movement’s goals.

But Mrs. Schlafly is a tricky model. She moved hard and fast toward her goals, defeating the Equal Rights Amendment but also painting herself into an extremist corner. In the end, her feminist opponents won more cultural power and many of the legal gains they wanted, too. Justice Barrett has gone hard and fast on the shadow docket but not yet in public; if Mrs. Schlafly holds a lesson for Justice Barrett, it may be that being an absolutist can wind up helping your opponents.

As a woman, Justice Barrett is the preferred symbolic choice to strike the final blow against Roe. “The conservative legal movement saw the optics of an all-male majority hobbling or ending abortion rights,” Ms. Murray of New York University said. “She gives them cover. Whether she plays into the optics is up to her.” It would be a real break with the court’s norms for Justice Barrett, in her second term, to write an opinion replacing Roe, given the towering nature of such a ruling. But how much question is there, really? The point of being a strategist is to win when it counts.

Emily Bazelon is a staff writer for The New York Times Magazine and the author of “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.” She is also a lecturer at Yale Law School.

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