By Andrew Chung
WASHINGTON (Reuters) – Conservative Justice Amy Coney-Barrett in a public appearance in March alongside liberal Judge Sonia Sotomayor said one way to promote compromise at the U.S. Supreme Court is to make narrower rulings rather than more sweeping ones.
“Not everything has to be decided in one opinion,” Barrett said.
She applied that view Monday in the court’s landmark ruling that former President Donald Trump has broad immunity from prosecution for official acts performed while in office. Barrett voted with her conservative supporters but refused to join them in a part of the opinion she said went too far.
The court’s divisions between its six conservative and three liberal justices are clear. But tensions within the conservative bloc are evident, even as it has managed to shift U.S. lawmaking to the right since Trump appointed Barrett in 2020 to replace the late liberal icon Ruth Bader Ginsburg. Barrett’s arrival gave conservatives a commanding 6-3 majority.
Barrett typically votes with her Conservative colleagues, but she has increasingly favored stricter rules and criticized their legal approaches, signaling a willingness to take a more moderate path.
Sherif Girgis, a law professor at the University of Notre Dame, said the court can decide more or less in a case at its own discretion.
“Judge Barrett appears more likely than others to use that flexibility to rule less or reserve an issue for later resolution, particularly when she believes the court has some open questions to answer about how to implement a more comprehensive approach,” Girgis said.
Girgis said Barrett “thinks narrower rulings are better for the court’s reputation with the public.”
In the immunity ruling, Barrett refused to accept one of the key conclusions: that in prosecuting a former president, juries are not allowed to consider evidence that relates to official acts. Official acts are now largely considered immune. That is not true even in a criminal case based solely on private conduct, which is not shielded.
“The Constitution does not require blinded juries,” Barrett wrote, giving the hypothetical situation of a former president being prosecuted for soliciting or accepting a bribe. Barrett noted that “to exclude any mention of the official act connected with the bribe would hamper the prosecution.”
In this regard, Barrett joined the dissenting liberals on the court: Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
Barrett also raised concerns about the scope of the rulings in two other cases involving Trump.
In March, the justices unanimously overturned a Colorado Supreme Court decision to bar Trump from that state’s Republican primary. The court found that Trump participated in an insurrection by inciting his supporters to attack the U.S. Capitol on January 6, 2021.
The court majority could have left it there, but it went on to conclude that the constitutional provision at issue can be enforced only by future legislation passed by Congress. Barrett declined to join that group. Opinions in politically charged cases, Barrett wrote, “should lower the national temperature, not raise it.”
On Friday, Barrett became the lone conservative justice to dissent from a ruling that raised the legal bar for prosecuting the January 6 rioters, as well as Trump, on charges of corruption and obstruction of an official proceeding.
‘OPENLY STRIKING’
Liberals remain skeptical of Barrett.
“The hope that Judge Barrett will act as a moderating force to her more openly combative colleagues will remain illusory until they heed her call or until she sides with the liberal justices on a case of great national importance,” said Devon Ombres of the left-leaning think tank Center for American Progress.
Barrett is part of the conservative majority that has rolled back abortion rights, expanded gun rights, rejected racially biased college admissions and undermined the power of federal regulators.
She is generally considered one of three justices in the court’s ideological middle, alongside John Roberts and Brett Kavanaugh, though all three are undeniably conservative.
Barrett joined liberals in opposing the court’s blocking of a major air pollution regulation. And she has written rulings upholding federal standards that give Native Americans priority in adopting Native American children and striking down restrictions on President Joe Biden’s administration’s contacts with social media platforms. Both rulings held that Republican-led states or conservative plaintiffs lacked legal standing to sue.
Mary McCord, a law professor at Georgetown University, noted that in the obstruction and immunity cases, Barrett asked questions to “explore whether there was a middle ground.”
“At least in these cases, and in other cases where she has criticized the way some members of the court rely on history and tradition, she appears to be trying to make rulings that will make it easier to apply the court’s rulings in future cases,” McCord said.
(Reporting by Andrew Chung; additional reporting by John Kruzel; editing by Will Dunham)
