Amy Coney Barrett asserts her voice, carries on Scalia legacy

After her fourth time period on the bench, Supreme Court Associate Justice Amy Coney Barrett is asserting her voice and following within the footsteps of the late Justice Antonin Scalia, a pioneer of originalism on the excessive court docket and her former boss. 

Barrett, appointed by President Donald Trump in October 2020 to fill the seat of the late Ruth Bader Ginsburg, surprised some this time period by voting in a number of key instances with the Democrat-appointed minority.

But authorized specialists say that the previous legislation professor is proving that her interpretation of the Constitution is per what the Founding Fathers supposed, and that disagreements between her and her fellow conservative justices must be “celebrated.”

“This term we have seen all the originalist justices engaged in a healthy debate about how to apply tenets of originalism and textualism in many different contexts,” Carrie Severino, president of JCN, informed Fox News Digital in an interview. “And that is a sign that the originalist project has matured, and that the justices are fleshing out these important principles, and it should be celebrated.”

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U.S. Supreme Court Associate Justice Amy Coney Barrett (L) and Chief Justice John Roberts pause for images on the high of the steps of the west aspect of the Supreme Court following her investiture ceremony on October 1, 2021, in Washington, DC.  (Chip Somodevilla/Getty Images)

For a few years, a broadly lauded and accepted judicial philosophy was that the Constitution was a “living and breathing document.” But conservative authorized practitioners contested that method as too unstable to political whims, judicially inappropriate and a departure from what the founders truly wrote of their authentic intent. 

But within the Eighties, the idea of an originalist interpretation of the legislation began to develop, largely pushed by Reagan-appointed Justice Scalia.  

“It used to be that the late, great, Justice Scalia was basically the only originalist on the court,” mentioned John Shu, a constitutional lawyer and former official in each Bush administrations. “Then, in 1991, it became Scalia and Thomas and sometimes Rehnquist. In 2005 and 2006, it became Scalia, Thomas, Roberts, and Alito.  And since 2017, Gorsuch, Kavanaugh, and of course Justice Barrett joined the Court, and she is very much following in Justice Scalia’s, for whom she clerked, footsteps.”

Some specialists say that method bore out this time period when Barrett sided with her liberal colleagues within the case during which the bulk dominated in favor of a participant within the Jan. 6, 2021, Capitol riot who challenged his conviction for a federal “obstruction” crime. 

That case will possible help the authorized arguments of former President Trump who was charged with obstruction, amongst different crimes, by Special Counsel Jack Smith.

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Supreme Court Justice Amy Coney Barrett is the keynote speaker on the 2023 Antonin Scalia Memorial Dinner that’s a part of the Federalist Societys 2023 National Lawyers Convention on the Washington Hilton Hotel on November 9, 2023, in Washington, DC.   (Jahi Chikwendiu/Washington Post by way of Getty Images)

In her dissent, Barrett wrote that by “narrowing” a federal statute, the Court “failed to respect the prerogatives of the political branches.”

“[S]tatutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway,” Barrett wrote, including that the Court’s majority deserted that method and does “textual backflips to find some way— any way—to narrow the reach” of the statue at challenge. 

Severino says that in her dissent, Barrett was “exactly in line” with Scalia’s method to that kind of clause.

“Within originalism and textualism, there are people who in some particular instances may disagree on how those principles apply in a specific case,” Severino wrote. “So it’s not surprising that Barrett is going to have a different approach than Thomas or Alito or Gorsuch or Kavanaugh. They all have their own slightly different flavors, different personality, to exactly how they apply those,” Severino mentioned. 

“It’s a great sign that the justices are openly discussing what’s the best way to apply originalism and textualism, the original intent and the actual text, which is what good and fair judges are supposed to do,” mentioned Shu.

Supreme Court Justice Antonin Scalia (1936-2016) (Liaison)

“Justice Barrett’s opinions from this term indicate that the Scalia approach, over time, carried the day,” he mentioned.  “He also was great at showing how the originalist perspective is the common-sense perspective, and the one most faithful to the law and to a judge’s responsibilities.”

Ilya Shapiro, senior fellow on the Manhattan Institute, famous that Barrett “was law professor for a long time, so she has a different background than everybody else on the court.”

“She’s very thoughtful, she’s very intellectual, she’s very theoretical. She wants to get the theory right. She’s a professor’s justice,” he noticed. 

“She’s still very much in the Scalia mode. She’s thinking about how to apply history and tradition and what that test means, and getting the theory of the matter right,” he mentioned. 

Which he mentioned “was clear in the immunity decision, where she agreed fully with Robert’s majority opinion, but said it would have been better to reframe this as an unconstitutional application of criminal law, rather than calling it immunity.”

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Amy Coney Barrett, affiliate justice of the U.S. Supreme Court, stands with her husband Jesse on the entrance plaza of the Supreme Court constructing following an investiture ceremony in Washington, D.C., U.S., on Friday, Oct. 1, 2021.  (Chip Somodevilla/Getty Images)

“She’s not a moderate. She’s not a centrist. She’s not moving left,” Shapiro mentioned. “She’s an originalist and a textualist.”

Jennifer Mascott, legislation professor at Catholic University and former Justice Department official, mentioned Barrett’s writings this time period “show a highly intelligent, careful principal jurist who is looking herself, as all the justices do, independently at the questions before her, and just taking the time for the American public to explain in important cases where she may have done something differently than the majority opinion.” 

Notably, Barrett authored a concurrence within the case during which the excessive court docket unanimously dominated that Colorado couldn’t take away Trump from 2024 election poll. 

“The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she wrote. For current functions, our variations are far much less necessary than our unanimity: All 9 Justices agree on the result of this case. That is the message Americans ought to take dwelling.”

U.S. Supreme Court Associate Justice Amy Coney Barrett arrives in the House Chamber for U.S. President Joe Bidens State of the Union address at the U.S. Capitol March 01, 2022 in Washington, DC. (Win McNamee/Getty Images)

The former Notre Dame professor is not without criticism on the right, with some conservative observers saying she can be too cautious or timid when it comes to upsetting precedent.

Giancarlo Canaparo, senior fellow at the Edwin Meese III Center for Legal and Judicial Studies, says Barrett is “extraordinarily conscious of the distinction between conservative judges and conservative politicians, and he or she’s attempting very onerous to be a conservative choose.”

“And meaning, I feel, for her, not solely being trustworthy to the textual content of the legislation and the Constitution, but in addition ensuring that the court docket would not transfer on a specific challenge till it’s form of conscious of the downstream results on this doctrine or that doctrine,” he mentioned.

Supreme Court nominee Amy Coney Barrett is sworn in during a confirmation hearing before the Senate Judiciary Committee, Monday, Oct. 12, 2020, on Capitol Hill in Washington.  (AP Photo/Patrick Semansky, Pool)

Canaparo observed that Barrett “must really feel like she is aware of every thing that may presumably be identified” a few matter to be able to make a transfer. 

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“She’s going to take positions when she seems like she is aware of every thing, which is usually in in these few areas the place she wrote that she wrote about as a professor, however in different instances, we see areas the place she’s unwilling to make strikes based mostly on no matter info she has on hand, which you recognize that may be a great factor generally. Sometimes not.”

But “generally, like a normal, you have to go along with what info you may have,” he said. 

“Sometimes it looks like possibly she would not truly desire a explicit occasion to win, or she would not need to make a specific transfer, and so she makes use of the declare that there is not sufficient info within the document as form of an out.”

Canaparo’s critique aside, though, conservative legal watchers appear to sign on to Bush administration veteran John Shu’s opinion that, “all in all, I feel it’s nice {that a} former Scalia clerk is now on the Court to hold on his legacy.”