The Loneliness of Amy Coney Barrett
When this Supreme Court term began last October, one of the more intriguing predictions from commentators was that Justice Amy Coney Barrett — entering her third full term on the court — would come out of her shell and emerge as the court’s new swing justice, casting the decisive vote in the most divisive cases.
The commentators got half of that right: There’s little doubt, in looking at the oral arguments the court has conducted and the decisions it has handed down over the past nine months, that Justice Barrett has found her literal and figurative voice — and has easily become the most interesting justice. Her questions at argument are penetrating; the analysis in her written opinions spare no one in their detail.
The second part of that prediction didn’t come true, though. Justice Barrett did side with some or all of the three Democratic appointees in several of the term’s most important cases — but her fellow conservatives seldom joined her. Indeed, while Justice Barrett was establishing her principled independence in the middle of the court, the other five Republican appointees moved only further to the right.
When the majority in the Colorado ballot disqualification case went further than necessary, and the Democratic appointees called them out for doing so, there was Justice Barrett — writing separately to chastise all of her colleagues for failing to send a unified message to the country. When Justice Clarence Thomas took too wooden an approach to assessing historical practice and tradition in a trademark case, there was Justice Barrett — pushing back in an important concurrence that was joined by Justice Elena Kagan and in part by Justices Sonia Sotomayor and Ketanji Brown Jackson.
When the Fifth Circuit allowed anti-vaccine activists and red states to bring an unprecedented lawsuit against the Biden administration built on the dubious claim that the government had coerced social-media networks into removing vaccine-related disinformation and misinformation, there was Justice Barrett — writing the majority opinion holding that the plaintiffs hadn’t come close to establishing that they had been harmed by the alleged government action and that the Fifth Circuit clearly erred in concluding to the contrary. And when the court sidestepped a highly charged dispute over emergency abortions in Idaho, it was Justice Barrett who wrote for the court’s “middle” in explaining why.
Even on Monday, when Justice Barrett otherwise joined the five other Republican appointees in holding that presidents enjoy at least some immunity from criminal prosecution, she went out of her way to push back against the majority’s most controversial holding — that protected conduct can’t even be used as evidence in criminal prosecutions against former chief executives.
