The arrival of Justice Amy Coney Barrett gave the Supreme Court its first originalist majority since the advent of the modern originalist movement during the 1980s. For generations, the Court sanctioned all sorts of distortions of the Constitution: It regularly disregarded our national blueprint’s structural constraints, allowing unelected federal agencies to supplant Congress and the states. It diminished individual rights that were not deemed to be in fashion, from free exercise to political speech to self-defense to property rights. It placed more value on notions like the right to abortion, contrived by judicial fiat, than on protections that are actually in the Constitution.
The monumental shift toward a Court truly dedicated to protecting the rule of law and the Constitution as it is written was set in motion by the appointment of Justice Neil Gorsuch in 2017, and then Justice Brett Kavanaugh in 2018. But even then, the originalists were still in the minority and the Court continued to be riddled with disappointments—including those triggered by Chief Justice John Roberts’ flip-flops on abortion and immigration.
The Court’s recent landmark decisions in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen, significant in their own right, are but a preview of the impact of this originalist majority, thanks in part to Barrett’s addition to the Court.
A Strong Start
In fact, Barrett and her fellow originalists may be more important now in setting the Court’s direction than Roberts had been. Soon after her arrival on the Court, she provided the fifth vote, with the chief justice in dissent, in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), granting injunctive relief to Catholic churches and Jewish synagogues that challenged New York’s COVID restrictions on worship under the Free Exercise Clause.
That term, she was part of a solid majority that showed its commitment to the protection of both individual rights and the structural Constitution on which these rights depend, to include:
- Cedar Point Nursery v. Hassid (2021), striking down as a violation of the Takings Clause of the Fifth Amendment a California regulation that allowed union organizers to physically occupy growers’ property;
- Collins v. Yellen (2021), finding that limiting the president’s authority to remove the Federal Housing Finance Agency (FHFA) director with a “for cause” restriction violates the separation of powers;
- Brnovich v. Democratic National Committee (2021), upholding Arizona’s out-of-precinct policy and ban on ballot harvesting and rejecting a reckless interpretation of Section Two of the Voting Rights Act;
- Americans for Prosperity Foundation v. Bonta (2021), striking down California’s forced disclosure law, which applied to anonymous speech and donor privacy, as a violation of the freedom of association; and
- Alabama Association of Realtors v. Department of Health and Human Services (2021), vacating the stay of a district court order striking down the Biden administration’s moratorium on evictions.
The originalists split in California v. Texas (2021), where Barrett and Justice Clarence Thomas were part of the 7–2 majority that decided the plaintiffs lacked standing in the multi-state lawsuit seeking to hold the Affordable Care Act unconstitutional.
A Vote for Religious Freedom
In addition to Cuomo, religious freedom was at issue in several cases in which Barrett was in the majority. She joined the Court in allowing a nominal damages action for the Christian college student challenging campus speech policy in Uzuegbunam v. Preczewski (2021).
In Fulton v. City of Philadelphia (2021), the Court unanimously held Philadelphia violated the Free Exercise Clause when it refused to contract with Catholic Social Services, which had been able to contract with the city to provide foster care for over 50 years, unless it agreed to certify same-sex couples as foster parents. While she did not go as far as Justices Thomas, Samuel Alito, and Gorsuch, who in concurrences in the judgment found the case an appropriate vehicle to overturn the narrow free exercise standard of Employment Division v. Smith (1990), Barrett wrote a concurring opinion acknowledging the “serious arguments that Smith ought to be overruled” and adding that “the textual and structural arguments against Smith are more compelling.” But in that case, she found a prior free exercise decision sufficient to support the Court’s judgment.
When Barrett was criticized by conservatives, it was usually limited to the emergency docket, in cases where she tended to make clear she was not necessarily taking the same position she would if she were considering the same issues on the merits. Her first opinion as a justice had been a brief concurrence in South Bay United Pentecostal Church v. Newsom (2021), where she and Justice Kavanaugh agreed to enjoin most of California’s challenged pandemic-related prohibition of indoor worship services, but she added that on the record before her, it had not been established that the prohibition on singing and chanting merited similar relief. Justices Thomas, Alito, and Gorsuch would have enjoined all (or in Alito’s case nearly all) of California’s restrictions on houses of worship. In John Does 1–3 v. Mills (2021), she issued another brief concurrence joined by Kavanaugh in a case denying injunctive relief to medical professionals seeking exemption from Maine’s vaccine mandate because of their religious convictions, but she focused less on merits than on her misgivings about what she viewed as overuse of the emergency docket “to force the Court to give a merits preview in cases that it would be unlikely to take.”
During the October 2021 term, another series of decisions in which Barrett was in the majority extended an unbroken line of victories for religious freedom and expression in merits cases that date back more than a decade:
- Carson v. Makin (2022), invalidating Maine’s exclusion of religious schools from a program of tuition assistance for private education under the Free Exercise Clause;
- Kennedy v. Bremerton School District (2022), upholding a high school football coach’s right to say a quiet personal prayer on the field after football games during time the school designated as personal for members of the coaching staff. In the process, the Court announced that it had “long ago abandoned” the notoriously muddled test of Lemon v. Kurtzman (1971) for assessing Establishment Clause claims;
- Ramirez v. Collier (2022), finding a death row inmate likely to succeed on his RLUIPA claim seeking to have his pastor lay hands on him and pray with him during the execution; and
- Shurtleff v. Boston (2022), prohibiting Boston from denying an application to fly a Christian-themed flag as part of its program allowing private groups to raise flags on a flagpole at City Hall Plaza.
A Vote Against Administrative Overreach
Barrett also showed herself to be a staunch originalist in notable cases decided this term in other areas. Several cases involving federal agencies’ assertions of power implicated the basic tenets of textualism and often separation of powers considerations as well. As such, she voted against vaccine mandates in two cases that yielded opinions of the Court. She was part of the majority in National Federation of Independent Business v. Department of Labor (2022), where the Court stayed OSHA’s emergency temporary standard—which required companies with 100 or more employees to require workers to be vaccinated or wear a mask and submit to weekly tests—noting that it was neither a workplace regulation nor an emergency. She joined both Thomas’ and Alito’s dissents in Biden v. Missouri (2022), where the Court upheld by 5–4 the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate that applies to nearly all health care workers, despite the absence of clear statutory authorization. In Biden v. Texas (2022), she wrote a dissent from another 5–4 decision, arguing that the Court did not have jurisdiction to entertain a challenge to the rescission of the Trump administration’s “Remain in Mexico” policy by the Biden administration.
The term’s most important separation of powers decision, however, came when the justices rejected in West Virginia v. Environmental Protection Agency (2022) the EPA’s power grab under an obscure provision of the Clean Air Act, which the agency invoked to impose draconian carbon emission reduction mandates. That decision made explicit the major questions doctrine that had helped bring about prior decisions reining in agencies that asserted power to decide issues of “vast economic and political significance” without “clear congressional authorization.”
A Vote to Protect Enumerated Rights and End Judicial Fiat
Barrett has also taken an expansive interpretation of free speech. She was part of the majority in Federal Election Commission v. Ted Cruz for Senate (2022), striking down as a violation of speech and association rights the FEC’s loan-repayment limit, which was layered on top of base limits that already apply. This suggests she will be a vote to protect political speech going forward. In City of Austin v. Reagan National Advertising (2022), she joined Justices Thomas and Gorsuch dissenting from the Court’s decision upholding the city’s special regulations targeting “off premises” signs; the rules bizarrely single out signs that advertise things that are not in the sign’s location.
Similarly, Barrett employed a robust interpretation of the Second Amendment right to “keep and bear arms.” She joined the Court’s opinion in New York State Rifle & Pistol Association v. Bruen (2022) that struck down New York’s onerous licensing law, which prevented law-abiding citizens with ordinary self-defense needs from carrying their arms in public to defend themselves.
Even more conspicuous than these decisions giving rights enumerated in the Constitution their due, Barrett provided the fifth vote to correct one of the Court’s most egregious mistakes in its history, by overturning the judicial invention of a nonexistent constitutional right to abortion in Roe v. Wade (1973). The ruling in Dobbs v. Jackson Women’s Health Organization (2022) ended one of the most ignoble chapters in the Court’s history—one that corrupted the very process by which justices are selected for the Court. If the Court’s 2020 decision in Cuomo was an early indicator of how consequential her replacement of Justice Ruth Bader Ginsburg would be for the Court, Dobbs punctuated Barrett’s appointment to the Court as one of the most significant ever.
I explained last year that voting patterns on the Court did not support the notion of an ideological split of three blocs of three, with Roberts, Kavanaugh, and Barrett meaningfully distanced from the other three Republican-appointed justices. That point is just as clear now. During this past term—Barrett’s first full term as a justice—she, Alito, and Thomas never broke with their four originalist colleagues in order to align in merits cases with members of the liberal bloc. The justice she agreed with most in the Court’s judgments was Alito, at 90%. Today, nearly all of her critics are on the Left, and they have unleashed on her their characteristic vitriol—and, over the last several months, escalating tactics that have brought protesters to her home and church as part of a wave of lawless intimidation.
The rule of law has not fared well in this Justice Department or under President Biden generally, as we have seen with the Department’s abdication of its basic responsibilities. But at our highest Court, in its most recent term, the justices stood strong, and the rule of law is thriving more than it has for a very long time. Justice Amy Coney Barrett is an essential part of this success.