Justice Amy Coney Barrett: Predictions vs Reality

After the death of the trailblazing Supreme Court Justice Ruth Bader Ginsburg, the chair Ginsburg famously dissented from was left vacant. Consequently, President Donald Trump, with only forty-six days until the 2020 presidential election, sought to fill the empty seat. While nominating a Supreme Court Justice so close to a presidential election was unprecedented, Trump did not hesitate in doing so with Amy Coney Barrett on September 26, 2020. One month later, Barrett was confirmed with a vote of 52 to 48. The complete lack of support from the Democratic party resulted in Justice Barrett becoming the first Supreme Court nominee in 150 years without any votes from the minority party.

During Barrett’s nomination and confirmation; the media, politicians, and legal scholars alike began to make predictions about how the new Supreme Court Justice would vote and the consequences of a conservative majority. This article analyzes the extent to which predictions about Barrett’s rulings on environmental policy and abortion from politicians and legal scholars were a reality.

In his article, The Remaking of the Supreme Court: Implications for Climate Change & Regulation, legal scholar Mark Nevitt analyzes potential Supreme Court rulings’ implications on environmental policy cases given the new 6-3 conservative majority. Nevitt claims that based on the new majority, Barrett’s own originalist legal writings, and the views of her mentor Justice Antonin Scalia, “a Barrett confirmation may well provide the judicial impetus to further reduce agency authority… and raise the jurisprudential bar for climate litigants.”[1] Nevitt’s predictions became a reality in Barrett’s first majority opinion written for an environmental policy case: United States Fish and Wildlife Service v. Sierra Club (2021). In this case, the Sierra Club requested records from the Environmental Protection Agency (EPA) concerning the agency’s decision to change industrial equipment, potentially harming wildlife. The National Marine Fisheries Service utilized the deliberative process privilege “which protects [them] from disclosure of documents generated during an agency’s deliberations about a policy.”[2]

In her majority opinion, representing a 7-2 ruling, Barrett delivered the decision that the deliberative process privilege does protect the Services’ reports “because they reflect a preliminary view-not a final decision- about the likely effect of the EPA’s proposed rule on endangered species.”[3] Barret reasoned that because the reports were “draft biological opinions” the government is not required to disclose them.[4] Despite evidence that suggests the agency’s use of the word “draft” was misleading, as explained in Justice Breyer’s dissent, Sierra Club sets a precedent that limits environmental groups’ access to government documents.[5] Barrett’s first opinion for the Court proves Nevitt’s prediction correct: environmental litigants will suffer under the conservative majority Court.

Concerns with Barrett’s nomination did not end with environmental cases. While being interviewed before the 2016 election, Trump emphasized that the judges he would appoint “will be pro-life, and we will see… about overturning.”[6] These comments left little doubt in the minds of politicians that Barrett was a pro-life Justice and a threat to the precedent set by Roe v. Wade. Throughout the Senate Judiciary Committee’s nomination hearings, Senator Dianne Feinstein repeatedly questioned Barrett about her views on abortion.[7] Most of her responses followed a similar pattern. In fact, the new Justice would often respond that it was not “appropriate… to offer an opinion on abstract legal issues or hypotheticals.”[8] Although it is difficult to tell at face value whether Barrett was genuinely concerned about the appropriateness of her responses or if she was deflecting, Reva B. Siegal, a Professor of Law at Yale Law School, points out Barrett’s public statements that prove her opposition both personally and in the courts. Siegal writes that Barret has “signed published statements making clear her strong opposition to abortion and “the Supreme Court’s infamonous Roe v. Wade decision” and calling “for the unborn to be protected in law,” she had questioned the power of stare decisis to bind the Court, and she had voted to uphold abortion restrictions during her brief tenure on the Seventh Circuit.”[9]

Although there hasn’t yet been a ruling regarding abortion by the Supreme Court since Barrett’s nomination, United States v. Texas (2021) brought the question of abortion before the Supreme Court. United States v. Texas questions whether the United States can sue Texas in federal court to prevent the enforcement of Senate Bill 8, legislation passed in Texas that prohibits abortions after six weeks of pregnancy.[10] Justice Barrett sided with the majority in granting certiorari before judgement. Justice Sonia Sotomayor wrote a special concurring opinion stating that, although she agrees with their decision to grant certiorari, she dissents because “the Court declines to act immediately to protect these women from grave and irreparable harm.”[11] The case is still pending adjudication before the Court, but Barrett’s choice in not siding with Sotomayor’s opinion is still reflective of her pro-life views highlighted by Siegal.

Barrett’s career on the Supreme Court is still young, but based on recent cases, the predictions of politicians and legal scholars align not only with how she rules, but with who she sides with on the Court. In environmental cases, Barrett’s opinion in Sierra Club limited environmental groups’ access to government documents, proving legal scholar Mark Nevitt’s predictions correct that the new conservative majority will disadvantage environmental groups. Although still pending, United States v. Texas reflects that Barret holds true to her pro-life views in abortion cases by not joining Justice Sotomayer in her opinion regarding the importance of the case for women’s health. As the youngest Justice on the Court, Barrett still has a lifetime of cases to rule on, but it is clear that the current predictions of scholars and politicians seem to be correct.