Amy Coney Barrett Leaves Supreme Court Guessing

Justice Amy Coney Barrett is angling to be the Supreme Court's swing vote.

Over three and a half years on the bench, the conservative justice has slowly inched closer to the middle, battling Chief Justice John Roberts to be the court's ideological center.

During her first and second years on the Supreme Court, Barrett voted in line with her conservative colleagues on 70 and 73 percent of cases, respectively. Those votes made her among the top three most conservative justices on the bench in both the 2020 and 2021 terms. But by the 2022 term, she was only voting conservatively 56 percent of the time.

Nominated to the bench by then-President Donald Trump just a week after Justice Ruth Bader Ginsburg's death, Barrett not only replaced a liberal icon but decisively shifted the Supreme Court to the right and solidified its new conservative supermajority.

For the same reasons that Barrett was a favorite among evangelicals and social conservatives, Democrats opposed her nomination, portraying Barrett and her conservative record as a threat to progressive legal achievements, like the Affordable Care Act (ACA) and reproductive rights.

But while Barrett joined her conservative colleagues in striking down Roe v. Wade, she has surprised observers, voting to maintain access to the abortion pill mifepristone and to allow Idaho hospitals to continue providing emergency abortions, for now. And despite significant fears that the Trump appointee would deal a blow to the Obama-era health care law, Barrett voted to uphold the ACA during her first term.

"It usually takes a few years for a justice to get their footing, as they get a sense of the new job," Dan Urman, a political science professor at Northeastern, told Newsweek. "Barrett seems to be a principled conservative and potential swing vote, even more than Chief Justice Roberts or Justice Kavanaugh."

As the number of high-stakes cases before the Supreme Court continues to rise, court watchers have paid close attention to Barrett's votes, trying to decipher how she'll side.

In March, she distanced herself from her conservative colleagues, opting to mark out her own distinctive stance in a Fourteenth Amendment case challenging Trump's 2024 candidacy.

In June, she stunningly bucked those same colleagues in a case challenging the Justice Department's use of the federal obstruction statute in the prosecution of January 6 defendants. In July, she argued that the Supreme Court needed a more nuanced way of applying the presidential immunity that the court gave Trump, explicitly endorsing parts of the dissent penned by her liberal colleague Justice Sonia Sotomayor.

"She wants to be the swing vote," Alison LaCroix, a law professor at the University of Chicago, told Newsweek. "And that might lead her to issue opinions that seem to be more moderate than the conservative majority."

LaCroix used the example of Barrett's opinion in the immunity case. While basically going along with the majority ruling, Barrett issued a narrower decision on immunity, one that didn't sweep as widely as the power that the bench's other conservatives were prepared to grant the office of the president.

"And so that reads as more moderate, but it also reads as being the swing vote," she said.

Barrett also pressed Trump's lawyers harder during the oral arguments than her colleagues, going through the former president's criminal indictment and asking which of his acts were official and which were unofficial—a line of question LaCroix described as "striking."

"She wasn't just saying broad executive power; she was really pressing the former president's lawyers, with a tone of incredulity, asking, 'Really, bribes are official?'" La Croix said. "Again, we see her wanting to be the swing vote, wanting to carve out a place for herself."

Even though Barrett has tried to distinguish herself from the pack, Alex Badas, a professor at the University of Houston specializing in judicial politics, told Newsweek that doesn't make Barrett any less conservative.

"She is as conservative as people have thought," he said.

Barrett has not only joined the Supreme Court's conservative majority in overturning Roe v. Wade but also in expanding gun rights, limiting the powers of the federal government, banning the use of affirmative action in college admissions and strengthening the protections of free speech, even when those rights conflict with anti-discrimination laws.

Still, Barrett's unique position and willingness to stop short of going as far as her conservative colleagues leave her vote a mystery that many will want to appeal to.

"We should expect to see Supreme Court advocates and lawyers think about how to argue to get Justice Barrett's vote," LaCroix said. "We've seen that in previous courts that it used to be the case with Justice [Anthony] Kennedy, Justice [Sandra Day] O'Connor."