Amy Coney Barrett becomes ‘most interesting’ justice on court, but likely no Souter

Justice Amy Coney Barrett’s legal zigzags over the last two years had begun to disturb conservative court watchers, who worried she was poised to become the next Justice David Souter — a Republican pick who usually sided with liberal justices.

She had joined Democratic appointees in dissent in a case involving President Trump’s deportation powers under the Alien Enemies. Law professors, working for The New York Times, published a review of her record in mid-June that concluded she was “aligning more frequently with liberal majorities and less with the other Republican appointees.”

Then came last month’s blockbuster ruling in the birthright citizenship case, where Chief Justice John G. Roberts Jr. assigned her to lead the high court’s opinion curtailing the use of universal injunctions.

She delivered the 6-3 decision conservatives had hoped for, offering a forceful defense of the limits of federal judges’ power — and along the way delivering a startling smackdown of her junior colleague, Justice Ketanji Brown Jackson.

Mr. Trump, who in 2020 made Justice Barrett his third pick to the high court, replacing the late Justice Ruth Bader Ginsburg, heaped praise on his appointee.

“I just have great respect for her. I always have,” the president said just hours after the ruling came down. “Her decision was brilliantly written.”

David Lat, founder of legal blog Above The Law, labeled her “the most interesting justice on the court.”

“Love her or hate her, but you definitely can’t ignore her,” Mr. Lat wrote at Original Jurisdiction, his Substack blog.

The legal left, meanwhile, treated her as the fish that jumped off the hook.

One liberal legal blogger lamented that her “flashes of independent thinking” didn’t carry over.

“It is often worthwhile reading her opinions as opposed to some of her colleagues. But this is not one of her more impressive judgments,” wrote David Allen Green at the Law and Policy Blog.

Justice Barrett was in the court’s majority this year in 58 of 65 total rulings with opinions, or 89% of the time. She trailed only Chief Justice Roberts, a George W. Bush pick, and Justice Brett M. Kavanaugh, Mr. Trump’s second pick for the court.

She wrote seven of those majority opinions, tied with Justice Clarence Thomas for most. She wrote two concurring opinions and four dissents.

In oral arguments, she was the third-least verbose justice, using up just one-third of the total time that Justice Jackson did, according to statistics compiled by Adam Feldman, founder of Empirical SCOTUS.

She sided most with Justice Kavanaugh, joining him on 91% of cases. She was least aligned with Justice Jackson, joining her just 68% of the time, Mr. Feldman’s data shows.

That included the universal injunctions case, where Justice Jackson unloaded on the majority.

“The court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” she wrote in her dissent.

Justice Barrett wasn’t having it.

“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

Mr. Feldman said when it comes to major rulings, Justice Barrett has generally joined in with her GOP-appointed colleagues.

That includes providing a critical fifth vote in the 2022 Dobbs ruling to strike down Roe v. Wade, the landmark 1973 ruling that gave women a national right to abortion.

Justice Barrett arrived at the Supreme Court with limited judicial experience. Her career was spent largely in academia, as a professor at the University of Notre Dame, though she did notch three years on a U.S. circuit court during Mr. Trump’s first term.

She was confirmed to the Supreme Court just before the 2020 election in a 52-48 vote.

In the ensuing years, she has faced complaints that she treats the bench like a law school procedures course, prodding lawyers on arcane issues and demanding higher standards of proof than other justices.

Mike Davis, a former Supreme Court clerk and now head of the Article III Project, labeled Justice Barrett a “rattled law professor” last year after she issued a dissent in a case that tossed obstruction charges against hundreds of Jan. 6 defendants.

He’s been more pleased with her recent rulings.

“Justice Barrett is a constitutionalist, and I never thought she was the next Sandra Day O’Connor,” Mr. Davis said. “Justice Barrett’s timid, academic approach can be frustrating. But Justice Barrett helped deliver monumental wins for the Constitution this term. Sometimes feeling the heat makes people see the light.”

Carrie Severino, president of JCN, a conservative legal outfit, said Justice Barrett has delivered what her backers hoped for.

“Nearly five years into her tenure, Justice Barrett has demonstrated herself to be the constitutional conservative that the movement expected,” she said. “Some people exploited a couple of her votes to bad-mouth her. It may have gotten a lot of clicks, but it wasn’t fair.”

Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said Justice Barrett is “a conservative proceduralist” who has been skeptical of the court’s increasing tendency to issue big decisions in cases that haven’t been fully briefed or had oral arguments.

“Most of the cases for which she was attacked from the right were on the emergency docket,” Mr. Shapiro said.

The law professors who did the study for The New York Times said she was the most pro-Biden of any of the GOP appointees and has been the least pro-Trump.

But Mr. Feldman said with more than four years’ experience on the high court, it’s safe to predict she will not drift as far to the left as Justice Souter or the late Justice John Paul Stevens, another GOP pick who ended up a leader of the liberal wing of the court by his retirement in 2010.