She cemented a conservative Supreme Court, but a ‘cautious’ Justice Barrett sometimes resists the far-right flank

WASHINGTON — Conservative Justice Amy Coney Barrett appeared to lose patience last week with the right-wing narrative that the Biden administration had unlawfully coerced social media companies to remove politically charged content.

In authoring the Supreme Court’s ruling that threw out a lawsuit brought by Republican-led states and several disgruntled social media users, Barrett took aim at the flimsy nature of the claims, the lower courts that indulged them — and several of her conservative colleagues.

While Barrett forensically pointed out how the plaintiffs had failed to substantiate their allegations that content moderation decisions were unlawfully influenced by the Biden administration and criticized a federal judge for reaching conclusions that were “clearly erroneous,” fellow conservative Justice Samuel Alito appeared to view the case through a more ideological lens.

He wrote a dissenting opinion joined by two other conservatives, Justice Clarence Thomas and Justice Neil Gorsuch, in which he credited the claims made by the plaintiffs and concluded that the Biden administration’s actions were “blatantly unconstitutional.”

Barrett sniped back at Alito in a series of lengthy footnotes, including one in which she said that in an effort to reach the merits of the case he “draws links” between government conduct and content moderation decisions that the plaintiffs themselves did not make.

The ruling and several other recent cases illustrate how Barrett — one of former President Donald Trump’s three appointees to the nine-justice court — is at times unwilling to indulge the more extreme arguments that reach the court. She joined the court at a tumultuous time, replacing Justice Ruth Bader Ginsburg following the liberal icon’s death in September 2020 as Republicans rushed to fill the seat just weeks before Trump’s election loss,

“I think people are going to look back on Justice Barrett in 10 or 15 years and say, ‘I might not agree with her all the time, but she is very principled and very careful,’” said William Jay, a lawyer who argues cases at the court. He added that some of her recent votes suggest she is concerned more than some of her colleagues about “orderly procedure,” which reflects some of her academic interests.

In the social media case, Alito was “much more willing to reach out to reach the merits” of the legal question, while Barrett, a former professor at the University of Notre Dame Law School, was “much more cautious,” said Jonathan Adler, a professor at Case Western Reserve University School of Law.

“What we are seeing in some of the cases is a degree of judicial humility in terms of how broad she’s willing to pronounce, how aggressively she’s willing to change the law, or how aggressively she’s willing to have the court intervene,” Adler said.

In certain cases, including Wednesday’s ruling, Barrett has joined conservatives Chief Justice John Roberts and Justice Brett Kavanaugh in forming a bloc in the middle of the court, which has a 6-3 conservative majority. When that group votes with the three liberal justices, Thomas, Alito and Gorsuch can be sidelined.

That dynamic was also on show on Thursday when the court dismissed a major abortion case without issuing a ruling, Barrett agreed with the outcome and was a key voice in explaining why.

She explained in a concurring opinion that the court had acted too swiftly in taking up the case before the legal arguments on both sides had been fleshed out.

“That was a miscalculation,” she wrote.

Thomas, Alito and Gorsuch all objected to the court declining to decide the case. (Liberal Justice Ketanji Brown Jackson did too, but for different reasons.)

Barrett attracted attention in another case on Thursday when she joined the three liberal justices in dissenting from the court’s decision to block a major air pollution regulation.

She criticized her conservative colleagues for intervening in a “fact intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.”

Barrett was also on the opposite side of the other five conservatives in a Friday ruling, when the court narrowed the scope of an obstruction statute that the Justice Department has been using to prosecute people involved in the Jan. 6 attack on the U.S. Capitol.

Contrary to the majority, which also included Jackson, Barrett concluded that the legal question “seems open and shut” in favor of prosecutors.

Barrett’s voting record, however, makes it clear that in significant cases she remains a solid member of the court’s conservative majority.

She voted in 2022 to curb abortion rights when the court overturned Roe v. Wade. Last year, she voted to end affirmative action in college admissions.

In the last few days, she joined the conservative majority in two business-backed wins in which the court delivered double blows to the power of federal agencies to regulate companies.

With the Supreme Court about to conclude its nine-month term on Monday with four cases left to decide, including one on whether Trump can be prosecuted for his attempt to overturn the 2020 election, she has been in the majority in 6-3 cases decided on ideological lines nine times this term, according to stats guru Adam Feldman.

While she may split with Thomas, Alito and Gorsuch at times, she has been on the same side as them in roughly 80% of cases in the current term, he added.

“She is very clearly on the conservative side of the court,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “The fact the tone she strikes may come across as more moderate is a reflection of how conservative the court has become.”