In two highly contentious issues that the Supreme Court heard this week—one involving abortion and the other concerning presidential immunity—Justice Amy Coney Barrett dominated the arguments, but Chief Justice John Roberts may end up casting the deciding decision.
During two prominent hearings, the 52-year-old ex-law professor criticized an attorney who was arguing in favor of Idaho’s stringent abortion prohibition, stating that she was “shocked” by the lawyer’s interpretation of the law. She prodded a previous president’s lawyer into making several potentially pivotal concessions the next day.
Since his arrival just days before the 2020 presidential election, Barrett—Trump’s third nominee—has been a dependable vote for the right bloc. Barrett shaped the last arguments of the current term while keeping her options open on a 6-3 court that often splits along ideological lines in the most critical cases.
At one point, she asked Idaho’s lawyer, “Why are you here?” as if there were no pressing matter for the court to decide.
Barrett has, in her brief time on the bench, positioned herself between the court’s liberals and its most conservative members. This was particularly clear last month when Barrett attempted to find a compromise on the subject of whether Trump’s behavior on January 6, 2021, could disqualify him from being included on Colorado’s presidential ballot.
A lot of people reposted her Wednesday exchange regarding the abortion issues, including the Center for Reproductive Rights, a legal advocacy group that Barrett probably won’t agree with very often. Just over two years ago, Barrett’s vote was necessary to nullify Roe v. Wade.
Professor Steve Vladeck of the University of Texas School of Law and HEADLINESFOREVER Supreme Court analyst noted that during oral arguments this term, particularly in the last few sessions, there have been several indications that Justice Barrett is becoming more at ease not only with herself but also with asserting her position on the court, even in high-profile cases. This positions her somewhere between the more conservative and more progressive segments.
He made the bold prediction that by the conclusion of this term, her vote will play a significant role in many, if not all, of the court’s contentious and consequential judgments.
Barrett presses Trump on the validity of his claims of full immunity
At the far end of the mahogany bench sits Barrett, the second-least senior justice of the Supreme Court. Nonetheless, she played a pivotal role during Thursday’s nearly three-hour oral argument concerning special counsel Jack Smith’s election subversion case and Trump’s assertions of blanket immunity.
With the help of many justices, including Barrett, Trump’s lawyer John Sauer conceded that the president does not have immunity for his “private” acts, as opposed to his “official” efforts. Trump had previously argued for “absolute” immunity for a far broader range of crimes, so this was a significant departure from his previous statements. The claims in the special counsel’s indictment were closely reflected in one crucial exchange as Barrett guided Sauer through a series of hypothetical questions.
According to Smith, he has the right to bring these acts before a jury if they are not official presidential duties and are instead considered private.
“Who was willing to spread knowingly false claims of election fraud” to lead an opponent’s challenges to an election, according to Barrett’s theory. According to HEADLINESFOREVER, former Trump attorney Rudy Giuliani was named as “co-conspirator 1” in Smith’s indictment, so that could have been a reference to him.
“In private?” Sauer was asked by Barrett.
“That seems personal to me,” Sauer admitted.
While questioning Michael Dreeben, the attorney for the special counsel, Barrett circled back to the subject. She said in that conversation that the prosecution is eager to get the case to trial as soon as possible and appeared to even plot a course to accomplish so.
If things don’t go ahead quickly, “the special counsel has expressed some concern for speed,” Barrett added. “Just proceed based on the private conduct and drop the official conduct,” the special counsel may have said.
Dreeben said it may work if the court established a standard that would render most of Trump’s activities after the election private instead of official.
George Mason University law professor Ilya Somin called Barrett a “key player” in the immunity case.
“She clearly believes that the prosecution can move forward if it zeroes in on private acts instead of public ones,” Somin stated. “And to her, the majority of the alleged Trump behavior appears to have been personal.”
Representing Idaho’s abortion stance, the state’s lawyer is “shocked.”
Sonia Sotomayor, the senior liberal judge on the Supreme Court, started questioning Idaho’s attorney about the kinds of emergency difficulties that would be exempted from the state’s strict prohibition on the practice just 20 minutes into this week’s oral arguments over the abortion issue.
When a pregnant woman’s life is in danger, Idaho’s ban allows for an abortion. However, according to the Biden administration, the treatment is also required by federal law for most emergency facilities to undertake in order to protect the health of women.
Sotomayor posed the question to Josh Turner, an attorney from Idaho, concerning what would happen if a pregnant woman’s water broke prematurely and doctors were worried about infection or excessive bleeding.
It might have been simple to answer the question. Idaho implied in its written arguments this year that the ban will be lifted for many such emergency situations. But Turner provided a more complex response in his conversation with Sotomayor: A doctor would need to make a “good-faith medical judgment” that the disease was life threatening.
Barrett then intervened.
Barrett told Turner, “I’m kind of shocked, actually,” in a line that would go on to become one of the most famous quotes from the dispute. It was my understanding that your own expert had previously stated that such circumstances were covered. Are you now claiming that this is not the case?
“I’m not saying that,” Turner began to reply.
(Barrett) “Well, you’re hedging,” he said. Justice Sotomayor is apparently asking, “Would this be covered or not?” I thought the witnesses from the legislature had already indicated that such complications would not be.
The question addressed a key issue in the case: the ability of doctors in Idaho to comply with both the state’s ban on abortion and the federal statute that mandates their treatment of pregnant patients experiencing medical emergencies, all while honoring the former.
According to Beth Brinkmann, senior litigation director at the Center for Reproductive Rights, “her questions seem to very much be trying to get at what the court has to decide without indicating how she would decide it.”
The discussions, according to Brinkmann, a seasoned Supreme Court attorney, demonstrate the value of oral arguments in shedding light on the merits of the parties’ written filings.
“Justice Barrett gets to put an advocate’s points to the test here,” she remarked.