Amy Coney Barrett Is the Most Interesting Justice on the Court

Steeped in tradition, the US Supreme Court is not an institution known for surprises. But a surprise is exactly what we got on the court’s last decision day of the term, 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 President Donald Trump’s executive order attempting to curtail birthright citizenship, the appeal before the Supreme 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 Roberts to write this opinion himself. But he instead assigned it to Barrett—the second most junior member of the court.

Assigning CASA to Barrett might have surprised some observers for another reason. Going into the final two weeks of the term, Barrett was “showing signs of leftward drift,” according to a study of her jurisprudence. The study’s authors—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 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.”

And it wasn’t just the substance of Barrett’s CASA opinion that was noteworthy; there was also the matter of its style. Typically Barrett 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, Barrett took the gloves off—especially in her forceful response to the dissent of Justice Ketanji Brown Jackson, which Barrett 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 Barrett’s part—or nothing more than an intriguing outlier among her opinions.

In doctrinal terms, CASA wasn’t Barrett’s only rightward turn in the last two weeks of the term. In United States v. Skrmetti, the Supreme 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 Barrett would have gone further than that.

In a separate concurrence, 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 other cases, Barrett 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.

What might explain Barrett’s uncharacteristically bold opinions in CASA and Skrmetti? Some suggest that the justice, 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. In the words of Trump ally Mike Davis, founder of the Article III Project, “Sometimes feeling the heat helps people see the light.”

But other commentators push back on such armchair theories, maintaining that Barrett is simply calling the cases as she sees them. According to Samuel Bray, a professor at 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—put it, the justice is “deeply committed to rule-of-law principles,” deciding cases based on “what she thinks of as fundamental principles of legal judgment.”

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.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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