The real measure of Justice Amy Coney Barrett will come in the next year

The knee-jerk reaction to Supreme Court Justice Amy Coney Barrett’s first term was that she was less conservative than some had hoped and others had feared.

But those judgments are likely to be premature, because the real tests for Barrett will come over the next year, in her second term as a justice.

The 49-year-old Barrett, for example, was lampooned by Democrats as a threat to health care during her confirmation hearings last year, but then ruled against a challenge to the Affordable Care Act in this year’s term.

Barrett is likely to be a crucial and possibly a deciding vote on two huge cases on hot-button culture war issues: abortion and guns. How she rules on those cases will illustrate the kind of justice she is and will be, and could end up becoming an enormous part of her legacy and the court’s.

Justice Amy Coney Barrett poses for a group photo of the justices at the U.S. Supreme Court on April 23, 2021. (Erin Schaff-Pool/Getty Images)
Supreme Court Justice Amy Coney Barrett in April. (Erin Schaff-Pool/Getty Images)

The abortion case is Dobbs v. Jackson Women’s Health Organization. At issue is a law passed by the Mississippi Legislature in 2018 that banned most abortions after 15 weeks of pregnancy. A federal court found the law unconstitutional, because Supreme Court jurisprudence prohibits bans on abortion before a fetus is viable outside the womb, which is considered to be at around 24 weeks of pregnancy.

The Supreme Court could uphold the lower court’s ruling, but most observers think that’s unlikely. Some also believe it is unlikely to throw out Roe v. Wade, the 1973 ruling that legalized abortion, and Planned Parenthood v. Casey, the 1992 ruling that upheld a constitutional right to abortion.

The middle ground would be for the court to get rid of the viability threshold, allowing states to enact bans on most abortions prior to 24 weeks of pregnancy, but to replace it with a different standard.

This is where politics comes into play.

The three most conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — are all considered likely to throw out Roe v. Wade if the opportunity were presented to them. The three liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — would keep it in place. But the three others — Barrett, Chief Justice John Roberts and Brett Kavanaugh — constitute a swing bloc of sorts that controls who gets a majority of votes.

This swing bloc is ideologically conservative, but for now it is considered to be more temperamentally moderate — and more politically calculating — than the three most conservative justices. And so the swing justices might choose to weaken Roe but not obliterate it, believing that getting rid of it in one fell swoop in Barrett’s first major abortion case would create a political backlash against the court, and against Barrett in particular.

Protesters on both sides of the abortion issue demonstrate in front of the the Supreme Court in January 2020.
Protesters on both sides of the abortion issue demonstrate in front of the the Supreme Court in January 2020. (Olivier Douliery/AFP via Getty Images)

“It would do more to fuel arguments against her than if the court takes its time and a couple of decisions to decide itself,” Mary Ziegler, a legal historian and law professor at Florida State University, and the author of "Beyond Abortion: Roe v. Wade and the Fight for Privacy," told Yahoo News.

“There's no shortage of other cases in the pipeline [that] they could take,” Ziegler said. “I still think within five years, the court is likely to have overturned Roe.”

Ziegler added that “the tension for [Barrett] in her own mind is she probably thinks Roe was wrongly decided. She could be telling herself that the right thing for a jurist to do would be to overturn Roe, [but] doing that would define her legacy and paint her as an ideologue.”

Mark Joseph Stern, a writer for Slate who covers the courts, said in a recent podcast analysis of the Supreme Court’s last term that some think “Barrett wants to be perceived as a serious intellectual, that Amy Coney Barrett doesn’t want to be perceived as a sort of instrumental, transactional vote … that she is a really brilliant person who wants to be perceived as an independent, neutral, thoughtful institutionalist.”

But conservatives have begun this week to increase pressure on the court to throw Roe out entirely. If it does not completely uproot Roe and Casey,the conservative legal scholar Robbie George argued a week ago, the current court would have to “double down” on the right to abortion at some point, “making it harder for them to fully reverse Roe later on.”

An anti-abortion activist protests outside the Supreme Court during the 48th annual March for Life in January.
An anti-abortion activist outside the Supreme Court during the annual March for Life in January. (Alex Wong/Getty Images)

“Dobbs presents the best opportunity in 47 years — and likely the best for another generation or more — to overturn Roe and Casey,” George wrote.

If Barrett and Kavanaugh join with the three hardline conservative justices to completely reverse Roe when the court decides the Dobbs case in the spring or summer of 2022, it will indicate that Barrett is less concerned about her reputation and legacy, and about political backlash against the court, than some observers had thought.

That outcome would also indicate a loss of influence on the court for Roberts, who has shown himself to be highly concerned with the political fallout from court rulings, and eager to insulate the court from culture war issues and the appearance of political motivation.

Meanwhile, New York’s ban on carrying firearms outside the home without a reason that’s approved by the state and related to self-defense is under challenge in New York State Rifle & Pistol Association v. Corlett. Other states with similar restrictions include California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

In that case, it appears Kavanaugh is eager to rule against restrictions on gun ownership, given his comments in a prior case. So Barrett’s vote could be decisive.

Supreme Court Justices Neil Gorsuch, left, and Brett Kavanaugh attend the State of the Union address in the U.S. House of Representatives in February 2020.
Supreme Court Justices Neil Gorsuch, left, and Brett Kavanaugh at the State of the Union address in February 2020. (Mario Tama/Getty Images)

This could be another test of whether Roberts can guide the court to a limited ruling that doesn’t set broad precedents. But observers think that with Barrett now on the court, the “proper cause” requirement for carrying a firearm outside the home is likely to be struck down. The question is how decisively the court comes down on the side of loosening restrictions.

The Supreme Court, in sum, is expected to tighten restrictions on abortion and loosen them on firearm possession over the next year. That, Ziegler said, will shift perceptions of the court and call into question whether Roberts is still a judicial “magician pulling the strings.” Instead, the issue will be whether Roberts has “lost the court,” and whether Kavanaugh and Barrett have lined up firmly behind the conservative bloc.

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