By Nate Raymond
July 3 (Reuters) – Justice Amy Coney Barrett further solidified herself during the U.S. Supreme Court’s most recent term as one of the few members of its 6-3 conservative majority willing to occasionally cross ideological lines and join with its liberal justices to buck the president who appointed her to the bench, Donald Trump.
Barrett’s appointment to a lifetime post on the top U.S. judicial body in 2020 during his first term gave it its current conservative supermajority. Barrett has played an instrumental role as the conservative justices have steered American law dramatically rightward this decade. She has joined rulings that have rolled back abortion rights and affirmative action policies, expanded gun and religious rights and backed Republican-led congressional redistricting efforts.
But Barrett, 54, became a target of criticism by Trump and some figures on the American right this year after siding against some of the Republican president’s biggest priorities. These included a decision she authored on Monday sustaining the ability of states to count late-arriving mailed-in ballots and rulings she joined that rejected his sweeping global tariffs and his executive order curtailing birthright citizenship.
“Do I think she made a mistake in the ruling? I do,” Vice President JD Vance said on Wednesday in response to questions about Barrett’s vote in Tuesday’s birthright citizenship ruling.
‘A TURNCOAT’
“Amy Coney Barrett is a turncoat,” conservative commentator Megyn Kelly said on her SiriusXM show following the mail-in ballot ruling. “She’s constantly siding with the left.”
Another commentator on the right, Matt Walsh, derided her as a “terrible pick” and a “DEI hire” — referring to diversity, equity and inclusion policies loathed by conservatives.
“I think it was the biggest mistake imaginable supporting Amy Coney Barrett,” Mike Davis, a Trump ally who heads the conservative Article III Project, said on a right-wing political commentator’s show on Tuesday. “She is a disaster for the Supreme Court.”
“She should resign. She is not up to the job,” Davis said.
Legal experts dispute the idea that Barrett is not a solidly conservative jurist. They instead said her votes reflect the reality that Trump cannot always win every case and cannot depend on his appointees to back his every move during a second term in office in which he has continued to test the limits of presidential power and has reshaped the U.S. government.
“To expect any justice to always vote the way that we wish things were, it’s just complete fantasy, and it misunderstands the entire enterprise,” said Brian Fitzpatrick, a law professor at Vanderbilt University who clerked for the late conservative Supreme Court Justice Antonin Scalia.
BARRETT’S SCORECARD
The court wrapped up its latest nine-month term with three rulings on Tuesday. In 13 major rulings in cases involving Trump and Republican and conservative interests argued during the term, Barrett voted in support 10 times and against three times.
She backed Trump’s bids to fire Federal Reserve Governor Lisa Cook and Federal Trade Commission member Rebecca Slaughter. She also supported Republicans including Vance who challenged campaign finance restrictions, favored the gutting of a key Voting Rights Act provision and backed Trump on rescinding protections for hundreds of thousands of Haitian and Syrian immigrants and allowing a hardline approach to asylum seekers.
In addition, Barrett voted to uphold West Virginia and Idaho state laws banning transgender student athletes from female teams at public schools including universities, and to strike down a Colorado law that banned psychotherapists from using “conversion” talk therapy intended to change an LGBT minor’s sexual orientation or gender identity.
Barrett also was in the majority in two cases widening the U.S. Constitution’s Second Amendment gun rights, striking down a Hawaii law restricting the carrying of handguns on private property open to the public, like most businesses, without the owner’s permission, and limiting the application of a U.S. law that bars firearms possession by certain drug users.
The three cases among those 13 in which she deviated from positions aligned with Trump and Republicans were tariffs, birthright citizenship and mail-in ballots. The ballots ruling authored by Barrett was 5-4, joined by fellow conservative Chief Justice John Roberts and the court’s liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Barrett wrote that federal law requires only that voters cast their ballot by Election Day.
“The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose,” Barrett wrote.
The ruling meant Mississippi can continue to permit mail-in ballots to be counted if they were postmarked on or before Election Day but received up to five business days after a federal election. Restricting mail-in ballots would stand to benefit Republicans. Democratic voters traditionally have been more likely to use mail-in ballots than Republican voters.
‘WITHOUT FEAR OR FAVOR’
Trump made three appointments to the Supreme Court during his first term in office — Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Barrett two years later. Trump previously had named Barrett to a federal appellate court, and she also spent time as a law professor at the University of Notre Dame.
Trump picked Barrett, calling her “one of our nation’s most brilliant and gifted legal minds,” to succeed Ruth Bader Ginsburg after the liberal justice died, and she was confirmed by a Republican-led Senate, with Democrats unified in their opposition.
During an evening White House ceremony after her confirmation, Barrett made remarks staking out her independence.
“The oath that I have solemnly taken tonight means at its core I will do the job without fear or favor and do it independently of the political branches and of my own preferences,” Barrett said, with Trump standing behind her.
‘TREMENDOUS LOSS’
Barrett and Gorsuch joined with Roberts and the liberal justices in February to strike down Trump’s tariffs — a signature Trump policy that he pursued under a law meant for use in national emergencies. Afterward, Trump lashed out at Barrett and Gorsuch, saying their decision to rule against one of his signature policies was an “embarrassment to their families.”
On Monday, Trump lamented the “tremendous loss” that the Supreme Court dealt him in the mail-in ballots case that Barrett wrote.
Trump’s birthright citizenship directive aimed to deny U.S. citizenship to U.S.-born babies of certain immigrants. Barrett and the three liberals joined a ruling authored by Roberts that concluded that Trump’s executive order violated a clause in the Constitution’s 14th Amendment that confers citizenship to those born in the U.S. who are “subject to the jurisdiction thereof.”
“Let’s just call it like it is: Justice Roberts and Justice Barrett decided to cave to the radical left,” top White House aide Stephen Miller said during an appearance on Fox News on Tuesday.
Barrett and Roberts were part of the 6-3 conservative majority in the Slaughter case that delivered Trump one of his biggest victories this year. The court expanded presidential powers over the U.S. government and overturned a 1935 precedent that had restricted Trump’s ability to remove officials at independent regulatory agencies at will.
In the Cook case, Barrett dissented from the decision authored by Roberts to treat the U.S. central bank differently from other federal agencies. Barrett wrote that the Roberts ruling on Cook was in “serious tension” with the court’s decision on Slaughter.
“I have been banging the drum, and I will continue: Do not put your hope in Justice Barrett,” University of Oklahoma law professor Michael Smith said, referring to American liberals. “She is very much on board with the program of the conservative justices. There is very little reason to hold out hope that she will make much of a difference for liberal goals.”
(Reporting by Nate Raymond in Boston; Editing by Will Dunham)
