Amy Coney Barrett Is The Most Interesting Justice On The Court
Justice Barrett: love her or hate her, but you definitely can’t ignore her.
Steeped in tradition, the Supreme Court of the United States is not an institution known for surprises. But a surprise is exactly what we got on the Court’s last decision day of October Term 2024, at the very start of the morning session.
Chief Justice John Roberts announced that Justice Amy Coney Barrett would announce the first opinion. And that opinion was in the case of… Trump v. CASA!
Although CASA arose out of Donald Trump’s executive order attempting to curtail birthright citizenship, the appeal before the Court actually concerned the legality of universal injunctions. It’s one of the most important cases of the Term, with broad implications for the federal courts, so most Court watchers expected Chief Justice Roberts to write this opinion himself. But he instead assigned it to Justice Barrett—the second most junior member of the Court.1
Assigning CASA to Justice Barrett might have surprised some observers for another reason. Going into the final two weeks of the Term, the justice known as ACB was “showing signs of leftward drift,” according to a study prepared for The New York Times (to accompany Jodi Kantor’s excellent profile (gift link) of ACB). The study’s authors—Professors Lee Epstein, Andrew D. Martin, and Michael J. Nelson—reported that Barrett was “aligning more frequently with liberal majorities,” winding up as “the Republican appointee least likely to support Trump in Trump-related disputes.”
But Justice Barrett’s opinion in CASA, which essentially put the kibosh on universal injunctions, was a significant win for Trump. Although the size of that victory is hard to assess right now, given all the uncertainties about what might follow, there’s no disputing that CASA is positive for the administration, given how many of its actions have been stopped by universal injunctions. In fact, Trump himself praised the ruling as “a monumental victory.”2
And it wasn’t just the substance of Justice Barrett’s CASA opinion that was noteworthy; there was also its style. Typically the justice employs rather restrained rhetoric, consistent with how she once described herself as a “one jalapeño gal”—in contrast to the jurist for whom she once clerked, the late Justice Antonin Scalia, who was a “five jalapeño” kind of writer.
But in CASA, Justice Barrett took the gloves off—especially in her forceful response to the dissent of Justice Ketanji Brown Jackson, which ACB dismissed as being “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” It will be interesting to see whether her CASA opinion winds up being a harbinger of a more Scalia-esque style on Justice Barrett’s part—or nothing more than an intriguing outlier among her opinions.3
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In doctrinal terms, CASA wasn’t Justice Barrett’s only rightward turn in the last two weeks of the Term. In United States v. Skrmetti, the Court, in an opinion by Chief Justice Roberts, upheld Tennessee’s ban on certain hormones and puberty blockers for transgender minors. It did so after concluding that the law doesn’t discriminate based on sex or transgender status—but ACB would have gone further than that.
In a separate concurrence, Justice Barrett argued that transgender individuals don’t constitute a “suspect class”—and so as a result, the “Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status.” This analysis wasn’t needed to decide Skrmetti, and in several past cases, ACB has argued that the Court shouldn’t address issues it doesn’t have to address. But in Skrmetti, she seemingly went out of her way to advance a conspicuously conservative conclusion.4
What might explain Justice Barrett’s unusually bold opinions in CASA and Skrmetti? Some suggest that ACB, stung by conservative critics who only a few weeks ago derided her as “Amy Commie Barrett” and a “DEI hire,” might have moved rightward in response. As Trump ally Mike Davis, founder of the Article III Project, told Lawrence Hurley of NBC News, “Sometimes feeling the heat helps people see the light.”
But other commentators push back on such armchair theories, maintaining that Justice Barrett is simply calling the cases as she sees them. According to Professor Samuel Bray of Notre Dame Law School (where Barrett used to teach), “she’s her own justice, and she’s committed to giving legal answers to legal questions.” Or as Harvard Law School professor Noah Feldman—who has known Barrett for more than 25 years, since they clerked together at the Supreme Court—told Devin Dwyer of ABC News, the justice is “deeply committed to rule-of-law principles,” deciding cases based on “what she thinks of as fundamental principles of legal judgment.”5
So just how conservative is Justice Amy Coney Barrett? Is she a horsewoman of the MAGA apocalypse, or a traitor to the Trumpian cause? In directional terms, is she drifting to the left or tacking to the right?
Those of us who are Supreme Court obsessives have debated—and will continue to debate—these questions. But here’s something I suspect many of us, from across the ideological spectrum, can agree on: Amy Coney Barrett is the most interesting justice on the Court right now.
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes, which contain material that did not appear in the Bloomberg Law version of the piece, are a form of “bonus content” for Original Jurisdiction subscribers.
If you’ll indulge me as I take a victory lap, I wrote a column in April 2024 that flagged many of the issues raised in Trump v. CASA—and correctly predicted that the Supreme Court would soon be tackling them.
The significance of CASA as a practical matter will depend on the degree to which lawsuits seeking universal injunctions can be replaced by (1) class actions and (2) cases brought under the Administrative Procedure Act (APA). For a closer look at class actions, check out this post, based on my interview of Professor Brian Fitzpatrick of Vanderbilt Law—a leading expert on class actions and author of an entire book on the subject, The Conservative Case for Class Actions.
Here are some additional barbs directed at KBJ, from ACB’s majority opinion in CASA:
“The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.”
“Waving away attention to the limits on judicial power as a ‘mind-numbingly technical’ query, she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to “order everyone (including the Executive) to follow the law—full stop.”
“JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.”
“JUSTICE JACKSON would do well to heed her own admonition: ‘[E]veryone, from the President on down, is bound by law.’ That goes for judges too.”
Here are four high-profile cases in which Justice Barrett counseled caution:
Fulton v. City of Philadelphia (June 17, 2021): “I therefore see no reason to decide in this case whether [the very important case of Employment Division v.] Smith should be overruled, much less what should replace it.”
Trump v. Anderson (March 4, 2024): “I agree that States lack the power to enforce Section 3 [of the Fourteenth Amendment] against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
Trump v. United States (July 1, 2024): “The Court describes the President’s constitutional protection from certain prosecutions as an ‘immunity.’ As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.”
Glossip v. Oklahoma (February 25, 2025): “While I agree with much of the Court’s analysis, I would not order the Oklahoma Court of Criminal Appeals (OCCA) to set aside Richard Glossip’s conviction. The OCCA did not make factual findings on the most important questions, and the record is open to multiple plausible interpretations…. When the record is susceptible to multiple plausible inferences, this Court should not be in the business of choosing between them.”
In terms of my personal view, I’m with Professors Bray and Feldman: I believe that Justice Barrett is simply deciding cases based on her own best legal judgment, not based on political considerations or in response to any pressure from the right or the left.
If you wanted to design an opinion to provoke this response from Justice Barrett, calling the most interesting / hotly disputed Fed Courts issue in the last five years “mind-numbing” “legalese” is a good way to start!
Who could possibly hate her? Well, yes, I know who, but I try very hard never to listen to them.