Supreme Court Justice Amy Coney Barrett is completing her fourth term as justice, speaking her own mind and following in the footsteps of her former boss, the late Justice Antonin Scalia, a pioneer of principled justice on the Supreme Court.
Barrett, who was appointed by President Donald Trump in October 2020 to replace the late Ruth Bader Ginsburg, surprised some by voting with Democratic appointees in the minority on several key cases this term.
But legal experts say the former law professor has demonstrated that her interpretation of the Constitution is consistent with the Founding Fathers’ intent, and that her disagreements with other conservative justices should be “celebrated.”
“This term, fundamentalist justices have engaged in healthy debate about how to apply the doctrines of fundamentalism and textualism to different situations,” JCN President Carrie Severino said in an interview with Fox News Digital. “This is a sign that the fundamentalist project is maturing and that justices are embodying these important principles, and it should be celebrated.”
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U.S. Supreme Court Justice Amy Coney Barrett, left, and Chief Justice John Roberts pause for a photograph at the top of the Supreme Court’s west steps following her inauguration ceremony on October 1, 2021 in Washington, DC. (Chip Somodevilla/Getty Images)
For many years, the judicial philosophy that the Constitution is a “living document” has been widely praised and accepted, but conservative jurists have challenged this approach as open to political whims, judicially inadequate, and a departure from the original intent of the Founding Fathers as they actually wrote it.
However, in the 1980s, led by Justice Scalia, an appointee of President Reagan, the concept of a principles-based interpretation of the law began to gain popularity.
“There was a time when the late Justice Scalia was basically the only fundamentalist on the Supreme Court,” said John Thew, a constitutional law scholar who served in the Bush and previous administrations. “Then in 1991 we had Justices Scalia and Thomas and sometimes Rehnquist. In 2005 and 2006 we had Justices Scalia, Thomas, Roberts and Alito. And then since 2017 we have Justices Gorsuch, Kavanaugh and, of course, Barrett, who has joined the Supreme Court, following in the footsteps of Justice Scalia, for whom she clerked.”
Some experts said that approach was borne out by Barrett’s words when she joined her liberal colleagues in the majority’s decision in favor of participants in the Jan. 6, 2021, attack on the Capitol challenging their convictions on federal “obstruction” charges.
The lawsuit is likely to bolster the legal claims of former President Trump, who has been indicted by Special Counsel Jack Smith on charges including obstruction of justice.
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Supreme Court Justice Amy Coney Barrett will deliver the keynote address at the 2023 Antonin Scalia Memorial Dinner, held as part of the Federalist Society’s 2023 National Lawyers Conference, on November 9, 2023, at the Washington Hilton Hotel in Washington, DC. (Jahi Chikwendiu/The Washington Post via Getty Images)
In her dissent, Justice Barrett wrote that by “narrowing” federal law, the Supreme Court “disrespected the power of the political branches.”
“[S]”Tattoos often fall outside the scope of their triggering issue, but under the rules of statutory construction we defer to the language anyway,” Barrett wrote, adding that the Supreme Court majority has abandoned that approach, instead “tuning the language in any way, any way, to narrow the scope” of the statutes at issue.
Severino said Barrett’s dissent was “directly consistent” with Scalia’s approach to that type of provision.
“Within fundamentalism and textualism, there are those who disagree about how those principles apply in particular cases,” Severino wrote. “So it’s not surprising that Barrett would take a different approach than Thomas, Alito, Gorsuch, and Kavanaugh, all of whom have slightly different flavors, different personalities, about how they apply those principles.”
“It’s a great sign that the justices are openly debating how best to apply originalism and textualism, original intent and actual wording, and that’s what good and fair judges should do,” Hsu said.
Supreme Court Justice Antonin Scalia (1936-2016) (Liaison Officer)
“Justice Barrett’s opinions this term show that the Scalia approach has stood the test of time,” he said, “and she has also been adept at showing that the originalist view is the common-sense view, the view most faithful to the law and to judicial responsibilities.”
Ilya Shapiro, a senior fellow at the Manhattan Institute, said Barrett “has a different background than other justices because she has been a law professor for a long time.”
“She’s very thoughtful, very intelligent, very theoretical. She gets the theory right. She’s a professor at heart,” he said.
“She’s still a Scaliate. She’s thinking about how to apply history and tradition, what the test means and getting the theory at issue right,” he said.
“That was clear in the immunity decision, and she agreed entirely with Roberts’ majority opinion, but said that rather than calling it immunity, she would have preferred to have redefined it as an unconstitutional application of the criminal statute,” he said.
Experts say Biden’s criticism of the Supreme Court is largely unprecedented and contrasts with Clinton’s more compliant approach in 2000.
U.S. Supreme Court Justice Amy Coney Barrett stands with her husband, Jesse, on the Supreme Court’s main plaza after her inauguration, Friday, October 1, 2021, in Washington, DC, United States. (Chip Somodevilla/Getty Images)
“She’s not a moderate. She’s not a center. She’s not a leftist,” Shapiro said. “She’s a fundamentalist, a textualist.”
Jennifer Mascot, a law professor at Catholic University of America and a former Justice Department official, said Judge Barrett’s writing this term “demonstrates that she is a highly intelligent and careful Supreme Court justice who, like all Justices, independently considers the issues before her and takes the time to explain to the American people when she may have decided differently from the majority on important cases.”
Notably, Barrett wrote the concurring opinion in the case in which the Supreme Court unanimously ruled that Colorado could not remove Trump from the ballot in the 2024 election.
“The Supreme Court has resolved a politically sensitive issue during a volatile presidential election. In times like these, any description of the Court should ease national tensions, not increase them,” she wrote. “At this moment, our unanimity is far more important than our differences. All nine Justices agree with the outcome of this case. That is the message the American people should take home.”
U.S. Supreme Court Justice Amy Coney Barrett arrives on the House floor for U.S. President Joe Biden’s State of the Union address at the U.S. Capitol on March 1, 2022 in Washington, DC. (Win McNamee/Getty Images)
The former Notre Dame professor has not been without criticism from the right, with some conservative observers saying he has been too cautious or timid about overturning precedent.
Giancarlo Canaparo, a senior fellow at the Edwin Meese III Center for Law and Judicial Studies, said Barrett “is very conscious of the difference between a conservative judge and a conservative politician, and she is trying very hard to be a conservative judge.”
“And I think that for her, it means not only staying true to the letter of the law and the Constitution, but also not moving on certain issues until the court has some awareness of the impact of this doctrine or that doctrine,” he said.
Supreme Court nominee Amy Coney Barrett is sworn in during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Monday, Oct. 12, 2020. (AP Photo/Patrick Semansky, Poole)
For Barrett to take action, she “would need to feel that she knows everything there is to know” about an issue, Canaparo said.
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“She takes a stand when she feels she knows it all. That is often in some areas where she has written as a professor. But in other cases, we see areas where she is unwilling to act on the information she has at her fingertips. Sometimes that can be a good thing, sometimes it’s not.”
But “sometimes, like a general, you have to act on the information you have,” he said.
“It sometimes seems like she uses the claim that there isn’t enough information on the record as an excuse because she doesn’t really want a particular party to win or she doesn’t want to take a particular action.”
But Canaparo’s criticism aside, conservative legal experts seem to agree with Bush administration veteran John Theu, who said, “Overall, I think it’s a great thing to have a former Scalia clerk on the Supreme Court to carry on Scalia’s work.”
