Of the cases heard in oral arguments and resolved already this term, she has voted 100% of the time with Thomas and Gorsuch. But many more cases are to be decided and she has not so perfectly aligned with those two justices on emergency requests decided without full briefing or arguments. In one death penalty case, Barrett broke from her colleagues on the right, as she signed an opinion by liberal Justice Elena Kagan that prevented Alabama from executing a condemned man without his pastor present.
For decades, the high court was ideologically split 5-4, conservative-liberal, and the most pronounced conflicts came down to differences between those two camps.
Now that Barrett has succeeded the late liberal Ruth Bader Ginsburg and the court is divided 6-3, such tensions certainly remain, but an intriguing subplot is emerging as the six justices on the right, led by Chief Justice John Roberts, navigate among themselves.
So far, Barrett’s votes with Thomas and Gorsuch have revealed loyalty to the textualist method of interpretation more than to a particular result. That was seen, for example, in a case last week that found the conservative trio in sync with the court’s three remaining liberal justices to favor a Guatemalan immigrant fighting deportation.
Barrett’s pattern so far contrasts with that of Justice Brett Kavanaugh, who in the conservative bloc has sided mainly with Roberts on the center-right. Differences between the newest appointees of former President Donald Trump could play out in major cases to be decided in the next two months, over the Affordable Care Act, voting rights, and religious liberties when tested against LGBTQ interests, as well as next session in a Second Amendment gun rights case already on the calendar.
The justices are also considering an abortion rights case for the 2021-22 term that would further illuminate Barrett’s brand of conservatism.
During her confirmation hearings last October, then-Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, emphasized Barrett’s Catholicism and position on reproductive rights: “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology.” She told senators she would rule based on facts and law, not her personal preferences.
The Senate’s confirmation of Barrett, on a 52-48 vote, has significantly enhanced the gravitational pull of the right wing.
Kavanaugh has sidled since his 2018 appointment toward Roberts. The chief and Kavanaugh have shared among the highest voting alignments for the past three years, according to statistics compiled by SCOTUSblog.
Yet patterns of statistical togetherness go only so far.
In several important cases when Roberts joined the liberal side, Kavanaugh remained with the right wing, as was seen in disputes over the Trump administration attempt to add a citizenship question to the census form, its effort to roll back protections for young undocumented immigrants brought to the US as children and a Louisiana abortion rights controversy.
Roberts provided a fifth vote with liberals to seal the outcome, rejecting Trump administration positions, while Kavanagh dissented.
Watching Barrett’s next two months
Barrett’s votes and opinions in upcoming weeks will add dimension to her record as she finishes out her first term.
During the weeks of oral arguments that wrapped up on Tuesday, Barrett’s approach has been exacting. She asked probing questions of both sides.
Last week, when the justices heard a First Amendment dispute over when schools — which are permitted to discipline students for disruptive speech on campus — may punish troublesome speech off-campus, Barrett focused on beyond-school scenarios involving bullying and cheating.
“I think harassment, bullying and I think threats of violence against the school and cheating are all things that would be of concern,” Barrett said but also observed that schools have been known to abuse their authority and “punish things that don’t cause substantial disruption or political speech or religious speech that they shouldn’t.”
Taking over Ginsburg’s chambers
She has declined interview requests and made no public appearances since her investiture.
Barrett has voted so far in only a dozen cases that have been argued. That’s where she has consistently been with Thomas and Gorsuch.
None of the decisions have been blockbusters. They dissented, along with Justice Samuel Alito, in an early controversy over the Railroad Retirement Act. The majority, which consisted of Roberts, Kavanaugh and the three remaining liberals, permitted judicial review of adverse actions by the US Railroad Retirement Board in disability-benefits disputes.
Last week, Thomas, Gorsuch and Barrett were in the majority with the three liberals for a textualist interpretation of a government requirement for notice of deportation hearings. Roberts, Kavanaugh and Alito dissented.
Barrett and Kavanaugh joined one opinion together, as the high court responded to an emergency request from the South Bay United Pentecostal Church. The church objected to California Covid-19 capacity limits on indoor worship services.
“As the case comes to us,” Barrett wrote, “it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”
The Sierra Club had sought documents related to consultations the Environmental Protection Agency undertook with the US Fish and Wildlife Service and the National Marine Fisheries Service as the EPA proposed a new regulation for structures used to cool industrial equipment. (Such intake structures can trap and kill aquatic wildlife.)
A lower court had ruled that draft biological opinions arising from the consultation fell outside the exemption and had to be made public.
In the decision written by Barrett reversing the lower court, the justices by a 7-2 vote broadly construed the exemption and allowed agencies more latitude to withhold documents determined to be “predecisional and deliberative.”
“What matters,” she wrote, “is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”