Barrett’s First High Court Term Gives Taste of Turn to Right


Justice Amy Coney Barrett’s first U.S. Supreme Court term revealed divides among the court’s conservative wing, even while giving a taste of its potential to transform American law in the coming years.

In a nine-month term that took place entirely behind closed doors because of the coronavirus pandemic, the justices bolstered property and religious rights, established limits on the Voting Rights Act and agreed to consider potentially blockbuster abortion and gun cases next term.

But the justices also gave indications of just how complicated any march to the right will be as Barrett and two other Donald Trump appointees settle in. The court’s conservatives took turns aligning with the three Democratic-appointed justices to control the outcomes of other cases, including a ruling that preserved the Affordable Care Act.

Along the way, Barrett hinted that, at least for now, she may be more interested in incremental changes than far-reaching overhauls. She joined Chief Justice John Roberts and Brett Kavanaugh to restrain the more sweeping instincts of their fellow conservatives on health care and religious rights.

Barrett’s First High Court Term Gives Taste of Turn to Right

“It’s not the coalition that you would have expected among conservatives. There’s a sense of fragmentation,” Sarah Harris, an appellate lawyer at Williams & Connolly, said at a briefing sponsored by the U.S. Chamber of Commerce.

The court closed out its nine-month term Friday by adding 10 cases to its 2021-22 docket, including fights over retirement-fund fees and religious-school aid.

The court opted not to hear potentially bigger fights over libel law, government eminent-domain power and the intersection of religious rights and gay marriage.

For more on Supreme Court actions today:

In the just-completed term, conservative fragmentation led to a slew of unusual vote alignments, most notably in the Affordable Care Act case. Four conservatives -- Roberts, Kavanaugh, Barrett and Justice Clarence Thomas -- joined a majority opinion that said the law’s challengers hadn’t suffered any injury that would let them sue. Thomas signed on even though he had backed two previous challenges to core parts of the law, also known as Obamacare.

“Although this court has erred twice before in cases involving the Affordable Care Act, it does not err today,” Thomas wrote.

Administrative State

The court’s six Republican appointees didn’t go as far as they might have in other cases, including two that tested the administrative state that many conservatives abhor. In one, the court gave what might prove to be a hollow victory to Fannie Mae and Freddie Mac shareholders who sued to recover more than $100 billion in profits collected by the federal government.

The court agreed with the shareholders that the director of the Federal Housing Finance Agency, which signed off on the so-called profit sweep in 2012, was unconstitutionally insulated from being fired by the president.

But the court said it could fix the constitutional problem by eliminating the FHFA director’s job protections and didn’t need to toss out the profit sweep. The investors came away with only a chance to go back to a lower court and seek a small portion of the disputed payments.

Similarly, the court found constitutional problems with a board that has thrown out more than 2,000 patents, but the justices refused to abolish the board -- or even revive the Arthrex Inc. patent that was at issue in the case. The court instead gave a presidentially appointed official more power to overturn the board’s decisions

“In both of those cases, what’s striking is not so much the rulings on the separation of powers, which I think were predictable. What’s striking about those cases is how modest the remedy is,” said Aziz Huq, a constitutional law professor at the University of Chicago Law School. “In both cases the remedy is tweaks to the structure of the organization that increased presidential control, but the litigants themselves get very little out of those cases.”

The Fannie-Freddie decision cleared President Joe Biden to fire FHFA Director Mark Calabria, who had championed efforts to end U.S. control of the two companies.

Voting Rights

Conservatives did claim several clean victories, including a pair of 6-3 rulings Thursday, the final opinion day of the term. In the Voting Rights Act case, the court upheld two Arizona voting restrictions in a decision that will provide legal cover for Republicans as they push for new rules around the country before the 2022 elections.

Justice Samuel Alito’s majority opinion “outlined guideposts that seem to make future challenges to election integrity laws much more difficult to win,” tweeted Carrie Severino, president of the Judicial Crisis Network, a group that worked to secure confirmation of Trump’s court nominees.

Minutes later, the same majority invalidated a California requirement that charities list the names and addresses of their top donors in filings with the state. The requirement was challenged by two conservative groups that had an ideological cross-section of supporters, including the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union.

Conservatives also won a 6-3 ruling that said California was violating the Constitution with a decades-old regulation that gives union organizers access to agricultural company land for part of the year to talk to workers. The majority said the rule amounted to a physical taking of private property, meaning the government must compensate affected landowners.

Religion Wins

Religious-rights advocates got a series of wins over government-imposed capacity restrictions during the pandemic. In April a 5-4 court imposed what some commentators have called a “most favored nation” rule, largely barring restrictions on houses of worship unless officials impose similar curbs on all comparable secular activities.

The Covid cases came via the court’s “shadow docket” -- the stream of requests for emergency action that has come to represent a significant chunk of the court’s business.

The court also backed religious freedom, unanimously, when it ruled that Philadelphia violated the Constitution by excluding a Catholic charity from part of the city’s foster-care program because the group wouldn’t help place children with same-sex couples.

“This term has some observers suggesting the court is more moderate than many predicted, but the fact is that the Roberts court is unquestionably conservative,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. “To be sure, there are different methodologies and approaches to judging among the conservative justices -- a fact reflected in some of the more narrow decisions this term.

“In terms of substantive ideology, however, there is a clear six-justice conservative majority.”

©2021 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.