The Barrett Court

Justice Amy Coney Barrett is full of surprises. The latest comes in a brief order granting in part and denying in other part the Republican National Committee’s request for a stay in a voting rights case from Arizona. At stake was the implementation of measures introduced after the 2020 election in the Grand Canyon State to require proof of citizenship to vote. Justice Barrett agreed with the court’s liberals that the law ought to be stymied. The order points to a fractured court, and the upshot is that Arizona’s laws will be partially enforced. That makes it all the more striking to see Justice Barrett, a woman of Catholic faith named to the bench by President Trump, align with the liberal lions. “Justice Sotomayor, Justice Kagan, Justice Barrett, and Justice Jackson would deny the application in full” is all that is vouchsafed on the case’s disposition. Up to what is the justice?Democrats assailed Justice Barrett during her confirmation hearings. Senator Harris exhibited a particularly serrated sophistry in respect of climate questions, to which the future justice responded that she was posing “a series of questions that are uncontroversial…and then trying to analogize that to eliciting an opinion from me that is on a very contentious matter.” Ms. Harris voted “nay” and called the hearings “illegitimate” and “reckless.” Then there was Justice Barrett’s earlier confirmation to the United States Court of Appeals for the Seventh Circuit. Senator Diane Feinstein attacked her creed, musing: “The dogma lives loudly within you. And that’s of concern.” Never mind the Constitution’s absolute decree that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” No. Ever. Any. Feinstein retreated. On the high bench, Justice Barrett has proven herself more unpredictable than her critics. There was her thunderbolt of a concurrence in the immunity case, Trump v. United States. She agreed with the conservatives that official presidential acts are presumptively immune, and that a smaller subset carry absolute immunity. She broke with them, and joined the liberals, in arguing for the use of even official acts as evidence.The justice also struck out on her own in another January 6 case, Fischer v. United States. The court’s other conservatives — joined by Justice Ketanji Brown Jackson — narrowed the use of a statute drafted as part of the Sarbanes-Oxley Act to prosecute rioters. Justice Barrett found herself agreeing with Justices Sonia Sotomayor and Elena Kagan that the law could be used against those who stormed the Capitol. Go figure.Which brings us to Justice Barrett’s suggestion during oral arguments in Trump that Special Counsel Jack Smith confine his indictment of the 45th president to indisputably private acts. No calling balls and strikes for her — rather a line drive. Our A.R. Hoffman has reported on the possibility that Mr. Smith will pursue just such a slimmed down indictment. A dispatch from Bloomberg News on Friday now relates that he has decided to do just that. Justice Barrett’s independent streak could be building toward a full blown judicial philosophy for this one time clerk to the Great Scalia. In a concurrence from last term she reckoned that the “views of preceding generations can persuade, and, in the realm of stare decisis, even bind … But tradition is not an end in itself.” That could set her on a collision course with the court’s senior justice, Clarence Thomas. The liberal wing evinces no such foment. Nor are we alone in noticing the news in Justice Barrett. An op-ed in the Times, an unlikely platform to be sure, garlands her as “easily” the “most interesting justice.” It reckons that her questions at argument “are penetrating; the analysis in her written opinions spares no one in its detail.” The Times might like that Justice Barrett risks making the reforms to the Supreme Court proposed by President Biden and Ms. Harris superfluous.

The Barrett Court

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