Chief Justice John Roberts may emerge as the pivotal vote in two politically charged cases on abortion and presidential immunity the Supreme Court heard this week, but it was Justice Amy Coney Barrett who owned the arguments.
In a pair of high-profile hearings, the 52-year-old former law professor dug into a lawyer defending Idaho’s strict abortion ban – at one point exclaiming she was “shocked” by his explanation of how the law worked in practice. A day later, she nudged an attorney for former President Donald Trump into a series of potentially critical concessions.
Barrett, Trump’s third nominee, has been a reliable vote for the conservative bloc since arriving days before the 2020 presidential election. But on a 6-3 court that often splits along ideological lines in the most significant disputes, Barrett managed to shape the final arguments of the current term this week while also keeping her options open.
“Why are you here?” she demanded of Idaho’s lawyer at one point, questioning whether there was actually a live issue the court needed to rule on.
In her relatively short tenure, Barrett has at times positioned herself between her most conservative colleagues and the court’s liberals. That was especially apparent last month when Barrett tried to stake out a middle ground on the question of whether Trump could be booted off Colorado’s presidential ballot for his actions on January 6, 2021.
Her exchange in the abortion arguments on Wednesday was shared widely on social media, including by the Center for Reproductive Rights – a legal advocacy group Barrett is unlikely to often agree with. Two years ago, Barrett was one of five votes needed to overturn Roe v. Wade.
“We’ve seen a number of signs during oral arguments this term, especially in the last few sessions, that Justice Barrett is increasingly comfortable not just in her own skin, but in staking out territory, even in high-profile cases, that puts her at least somewhere between the more conservative and more progressive blocs on the court,” said Steve Vladeck.
As the second-least senior justice, Barrett sits at the far end of the Supreme Court’s mahogany bench. But she was at the center of some of the most important turning points of the nearly three-hour oral argument Thursday about Trump’s claims of sweeping immunity in special counsel Jack Smith’s election subversion case.
Barrett was one of several justices to get Trump attorney John Sauer to agree that a president’s “private” actions – as opposed to his “official” actions – do not qualify for immunity. That was a notable break from earlier arguments Trump submitted that called for “absolute” immunity on a much wider scale of acts.
In one key exchange, Barrett then walked Sauer through a series of hypothetical questions that closely mirrored the allegations in the special counsel’s indictment. If those actions are considered private and not part of a president’s official duties, then Smith has argued he should be able to put them before a jury.
A party turns to a private attorney, Barrett hypothesized, “who was willing to spread knowingly false claims of election fraud” to spearhead his challenges to an election. That appeared to be a reference to former Trump attorney Rudy Giuliani, identified by source as “co-conspirator 1” in Smith’s indictment. “That sounds private to me,” Sauer conceded.
Barrett returned to the theme as she questioned the special counsel’s attorney, Michael Dreeben. In that exchange, she noted that prosecutors are eager to move the case to trial quickly and even seemed to sketch out a path to do so.
“The special counsel has expressed some concern for speed and wanting to move forward,” Barrett said. Couldn’t the special counsel “just proceed based on the private conduct and drop the official conduct?”
Dreeben responded that might work, as long as the court crafted a test that would make most of Trump’s post-election actions private rather than official.
Ilya Somin, a law professor at George Mason University, described Barrett as a “key player” in the immunity case.
“She clearly thinks the prosecution can proceed if it focuses on private acts, rather than official ones,” Somin said. “And most of the conduct alleged against Trump seems private to her.”
The Supreme Court was about 20 minutes into oral arguments in the abortion case this week when Sonia Sotomayor, the court’s most senior liberal justice, began quizzing Idaho’s attorney about what sorts of emergency complications would be exempted from the state’s stringent ban on the procedure.
Idaho’s ban permits abortion when the life of a pregnant woman is at stake. But the Biden administration claims that, under federal law, most emergency rooms must also perform the procedure if needed to protect a woman’s health.
What about a situation where a pregnant woman’s water breaks early and doctors are concerned about sepsis or uncontrolled bleeding, Sotomayor asked Idaho’s attorney Josh Turner.
The question might have been easily answered. In written arguments this year, Idaho suggested that many such emergency conditions would be excluded from the ban. But in his exchange with Sotomayor, Turner offered a more nuanced response: A doctor would have to make a “good-faith medical judgment” that the condition was life-threatening. That’s when Barrett jumped in.
“I’m kind of shocked, actually,” Barrett told Turner in what would become perhaps the most quoted moment from the argument. “I thought your own expert had said below that these kinds of cases were covered. And you’re now saying they’re not?”
“I’m not saying that,” Turner started to respond.
“Well, you’re hedging,” Barrett interjected. “I mean, Justice Sotomayor is asking you ‘would this be covered or not,’ and it was my understanding that the legislature’s witnesses’” said those complications would be exempted.
The question spoke to a central issue in the case: Whether Idaho’s doctors can honor both the state’s ban on abortion and the federal law requiring them to “stabilize” pregnant patients facing medical emergencies.
“Her questions seem to very much be trying to get at what the court has to decide without indicating how she would decide it,” said Beth Brinkmann, senior litigation director at the Center for Reproductive Rights.
Brinkmann, a veteran Supreme Court litigator, said the exchanges underscore the importance of oral arguments as a tool to look behind the written briefs submitted by each side.
“This is where someone like Justice Barrett gets to pressure test an advocate’s points,” she said.
