After her fourth term on the bench, Supreme Court Associate Justice Amy Coney Barrett is asserting her voice and following in the footsteps of the late Justice Antonin Scalia, a pioneer of originalism on the high court and her former boss.
Barrett, appointed by President Donald Trump in October 2020 to fill the seat of the late Ruth Bader Ginsburg, surprised some this term by voting in a few key cases with the Democrat-appointed minority.
But legal experts say that the former law professor is proving that her interpretation of the Constitution is consistent with what the Founding Fathers intended, and that disagreements between her and her fellow conservative justices should be “celebrated.”
“This term we have seen all the originalist justices engaged in a healthy debate about how to apply tenets of originalism and textualism in many different contexts,” Carrie Severino, president of JCN, told Fox News Digital in an interview. “And that is a sign that the originalist project has matured, and that the justices are fleshing out these important principles, and it should be celebrated.”
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For many years, a widely lauded and accepted judicial philosophy was that the Constitution was a “living and breathing document.” But conservative legal practitioners contested that approach as too volatile to political whims, judicially inappropriate and a departure from what the founders actually wrote in their original intent.
But in the 1980s, the concept of an originalist interpretation of the law started to grow, largely driven by Reagan-appointed Justice Scalia.
“It used to be that the late, great, Justice Scalia was basically the only originalist on the court,” said John Shu, a constitutional lawyer and former official in both Bush administrations. “Then, in 1991, it became Scalia and Thomas and sometimes Rehnquist. In 2005 and 2006, it became Scalia, Thomas, Roberts, and Alito. And since 2017, Gorsuch, Kavanaugh, and of course Justice Barrett joined the Court, and she is very much following in Justice Scalia’s, for whom she clerked, footsteps.”
Some experts say that approach bore out this term when Barrett sided with her liberal colleagues in the case in which the majority ruled in favor of a participant in the Jan. 6, 2021, Capitol riot who challenged his conviction for a federal “obstruction” crime.
That case will likely aid the legal arguments of former President Trump who was charged with obstruction, among other crimes, by Special Counsel Jack Smith.
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In her dissent, Barrett wrote that by “narrowing” a federal statute, the Court “failed to respect the prerogatives of the political branches.”
“[S]tatutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway,” Barrett wrote, adding that the Court’s majority abandoned that approach and does “textual backflips to find some way— any way—to narrow the reach” of the statue at issue.
Severino says that in her dissent, Barrett was “exactly in line” with Scalia’s approach to that type of clause.
“Within originalism and textualism, there are people who in some particular instances may disagree on how those principles apply in a specific case,” Severino wrote. “So it’s not surprising that Barrett is going to have a different approach than Thomas or Alito or Gorsuch or Kavanaugh. They all have their own slightly different flavors, different personality, to exactly how they apply those,” Severino said.
“It’s a great sign that the justices are openly discussing what’s the best way to apply originalism and textualism, the original intent and the actual text, which is what good and fair judges are supposed to do,” said Shu.
“Justice Barrett’s opinions from this term indicate that the Scalia approach, over time, carried the day,” he said. “He also was great at showing how the originalist perspective is the common-sense perspective, and the one most faithful to the law and to a judge’s responsibilities.”
Ilya Shapiro, senior fellow at the Manhattan Institute, noted that Barrett “was law professor for a long time, so she has a different background than everybody else on the court.”
“She’s very thoughtful, she’s very intellectual, she’s very theoretical. She wants to get the theory right. She’s a professor’s justice,” he observed.
“She’s still very much in the Scalia mode. She’s thinking about how to apply history and tradition and what that test means, and getting the theory of the matter right,” he said.
Which he said “was clear in the immunity decision, where she agreed fully with Robert’s majority opinion, but said it would have been better to reframe this as an unconstitutional application of criminal law, rather than calling it immunity.”
“She’s not a moderate. She’s not a centrist. She’s not moving left,” Shapiro said. “She’s an originalist and a textualist.”
Jennifer Mascott, law professor at Catholic University and former Justice Department official, said Barrett’s writings this term “show a highly intelligent, careful principal jurist who is looking herself, as all the justices do, independently at the questions before her, and just taking the time for the American public to explain in important cases where she may have done something differently than the majority opinion.”
Notably, Barrett authored a concurrence in the case in which the high court unanimously ruled that Colorado could not remove Trump from 2024 election ballot.
“The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she wrote. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
The former Notre Dame professor is not without criticism on the right, with some conservative observers saying she can be too cautious or timid when it comes to upsetting precedent.
Giancarlo Canaparo, senior fellow at the Edwin Meese III Center for Legal and Judicial Studies, says Barrett is “extremely mindful of the difference between conservative judges and conservative politicians, and she’s trying very hard to be a conservative judge.”
“And that means, I think, for her, not only being faithful to the text of the law and the Constitution, but also making sure that the court doesn’t move on a particular issue until it’s sort of aware of the downstream effects on this doctrine or that doctrine,” he said.
Canaparo observed that Barrett “needs to feel like she knows everything that can possibly be known” about a matter in order to make a move.
“She’s going to take positions when she feels like she knows everything, which is often in in those few areas where she wrote that she wrote about as a professor, but in other cases, we see areas where she’s unwilling to make moves based on whatever information she has on hand, which you know that can be a good thing sometimes. Sometimes not.”
But “sometimes, like a general, you’ve got to go with what information you have,” he said.
“Sometimes it seems like maybe she doesn’t actually want a particular party to win, or she doesn’t want to make a particular move, and so she uses the claim that there isn’t enough information in the record as sort of an out.”
Canaparo’s critique aside, though, conservative legal watchers appear to sign on to Bush administration veteran John Shu’s opinion that, “all in all, I think it’s great that a former Scalia clerk is now on the Court to carry on his legacy.”
