Splinters in the 6-3 Supreme Court (Part 3: Amy Coney Barrett again)

Credit: Mark Schiefelbein/AP

In the first installment in this series, back in December last year, we saw that Justice Amy Coney Barrett's voting record had unmistakenly moderated. It had become less politically conservative in the most recently completed term of Court, 2023-2024, than it had been in her previous three years since her appointment to the Court. In fact, her record was the least politically conservative of the six politically conservative Justices. Beyond that, her record had grown increasingly distant from the records of the Court's two most politically conservative members, Justices Clarence Thomas and Samuel Alito. (See the graph reprinted below at *.)

In the second installment, we saw that Justice Barrett voted with the three politically liberal Justices--Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--in several of the term's most important cases. Sometimes Chief Justice John Roberts--another moderating conservative on the Court-- was with the liberals as well, but sometimes not. So, for a few examples:

• She had joined the bare majority to refuse to halt New York's criminal proceedings against then-president-elect Trump.
• She had agreed with the liberals in dissent that some of the charges against Trump were clearly criminal and non-presidential and thus outside the scope of immunity.
• She also agreed with the liberals in dissent that disqualifying Trump from public office for insurrection under the 14th Amendment did not require an act of Congress.
• She wrote the dissent for herself, Sotomayor, and Kagan, that the January 6 Capitol rioters were guilty of "obstructing an official proceeding."
• She also wrote the dissent, joined by all three liberals, to uphold Environmental Protection Agency regulations to protect downwind states from the air pollution emitted by upwind states. 

There were others, but those few should suffice to make the point. Indeed, the point is recently being recognized by reporters covering the Court. And by political allies of President Trump and Trump himself, who are furious and calling her "weak," a "rattled law professor," a "DEI appointee," a "closet Democrat," and even "evil."

(See, e.g., Ann E. Marimow, Justice Amy Coney Barrett ignites anger on the right after ruling against Trump, Washington Post, March 6, 2025; Devin Dwyer, MAGA rage against Justice Barrett has been brewing, ABC News, June 3, 2025; Kristen Holmes and John Fritze, Trump privately complains about Amy Coney Barrett and other Supreme Court justices he nominated, CNN, June 3, 2025; Farrah Tomazin, Trump Is Melting Down in Private at ‘Weak’ Amy Coney Barrett, Daily Beast, June 3, 2025.)

As for the Federalist Society which had recommended judicial nominees to Trump, including Barrett, he condemned the former leader of the society in a post on Truth Social: "a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America." [Whoa! A wee bit unhinged?]

(See Nia Prater, Amy Coney Barrett Has Become a Trump-Administration Villain, New York Magazine Intelligencer, June 3, 2025.)

Early this year, a few days following the second installment in these pages, the "weak" and "rattled" Justice Barrett again broke with the Court's most politically conservative Justices. In Glossip v. Oklahoma, she concurred in the majority opinion of Justice Sotomayor in this death penalty case, that "the prosecution violated its constitutional obligation to correct false testimony."

Barrett agreed with the reasoning of the other members of the majority that the decision below must be overturned: the prosecution, not the lawyer for the defendant, has the duty to correct false testimony. And like the majority, she disagreed with the view of Thomas and Alito that the Oklahoma court had upheld the conviction on pure state law and, therefore, the Supreme Court had no right to review that decision. (She did disagree with the majority's total reversal and grant of a new trial. Instead, she argued that the case should be returned to the state court to make a factual determination whether the prosecutor actually knew that the testimony in question was false.)

In a vote that apparently especially enraged President Trump and his allies, Barrett sided with the three liberals and Roberts in Dept. of State v. AIDS Vaccine Advocacy Coalition, refusing to freeze around $2 billion in foreign aid as previously ordered by Trump.

The case arose from an executive order issued the month before. President Trump had halted the payment of foreign aid funds to federal agencies, in an effort to ensure that payments would only go to programs aligned with Trump's policies. But a district court ordered that foreign aid payments--about $2 billion worth--be made for work already completed. The Supreme Court rejected the Trump administration's request to vacate what the district court had done and to give effect to Trump's executive order. That ruling of the Court's bare majority--which included Justice Barrett--"stunned" the dissenting four conservative Justices. 

Just one more to underscore what the foregoing votes of Justice Barrett should make clear. In Trump v. J.G.G., she sided with the three liberals on the Court, dissenting from the 5-4 majority decision that lifted orders of the D.C. District Court, which had stopped the Trump administration from summarily deporting certain Venezuelan immigrants. In short, the deportations could now continue.

Barrett agreed with Sotomayor's dissenting argument that the deportations were clear due process violations, whether the challenges were brought in D.C. or Texas. She joined the dissenting opinion's warning that, "if the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief," that would violate the bare requirements of constitutional due process and of the Court's decisions--including assertions in today's per curiam opinion. Together with the three liberals, Barrett saw no good reason for the majority--the remaining five conservative Justices--to intervene in the case and interfere with the district court's decision to stop the deportations. 

These and similar votes of Justice Amy Coney Barrett are infuriating Trump allies and disappointing many other political conservatives. On the other hand, some political liberals are warming up to her and applauding her defiance of conservative expectations.

Regardless, unlike the Court's hard-core political conservatives--or liberals--she is displaying a measure of independence, unshackled from ideological purity that should be welcomed by those (of us) who decry the Court's usual, crass partisan divide. Republican Justices Anthony Kennedy and Sandra Day O'Connor were disappointments to those who preferred partisan purity. In the past, Democratic Justice Felix Frankfurter was a notable disappointment to his partisans for similar reasons.

But at least to some--including me--this independence, this lack of partisan one-sidedness, this open-mindedness, this refusal to view judging as an adversarial team sport, is something that is encouraging. One of the developments on this current 6-3 Court that is especially welcomed.

In the next few posts, we'll look at some other cracks or splinters in the Court's 6-3 partisan divide.

 * Here's that promised graph

(click to enlarge for a better view) 

Cooke Symposium 2025: Criminal Justice on Trial

The Albany Law Review Presents

The 15th Annual Chief Judge Lawrence Cooke Symposium
April 15, 2025
Albany Law School

New York's Harvey Weinstein Decision

MOLINEUX MEETS #METOO:

EVALUATING THE MEDIA’S COVERAGE OF PEOPLE V. WEINSTEIN AND THE NEW YORK COURT OF APPEALS

by Sarah Midani (Albany Law School, Class of 2025; Editor-in-Chief, Albany LawReview)

As Ms. Midani writes, the New York high court's decision to overturn Harvey Weinstein's conviction 

garnered mixed reactions from advocates against sexual violence, including those behind the #MeToo movement. Weinstein’s conviction is widely regarded as a #MeToo launching point, and the movement has highlighted the stark reality of sexual violence that many people endure. The trial court’s evidentiary rulings, with which the Court of Appeals’s majority took great issue, affected what kinds of testimony the jury was allowed to hear.

The trial judge allowed three women—who were not complainants in the original action—to testify about their own past experiences with Weinstein. All three said he sexually harassed and/or assaulted them. The problem, according to the Court of Appeals, was that those alleged incidents were not part of Weinstein’s charges. As such, the testimony triggered a New York evidentiary principle known as the Molineux rule. Under that rule, which is named after a 1901 Court of Appeals decision, the at-issue evidence would “not [be] admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged"....

[T]he Court defended its analysis as “grounded on bedrock principles of evidence and the defendant’s constitutional right to the presumption of innocence and a fair trial.”

The article, to be published as 87 Albany Law Review 647 (2024), is accessible at:
https://www.albanylawreview.org/article/123137-molineux-meets-metoo-evaluating-the-media-s-coverage-of-people-v-weinstein-and-the-new-york-court-of-appeals

Splinters in the 6-3 Supreme Court (Part 2: Amy Coney Barrett cont'd)

Justice Barrett with liberal Justices Sotomayor, Kagan, and Jackson.
Credit: Supreme Court Collection

On January 9, shortly after this series began (see Part 1), the Supreme Court rejected then-President-Elect Donald Trump's request to halt the New York State criminal proceedings against him. Specifically, he sought to have the Court stay the sentencing proceedings incident to his multiple state criminal convictions. In a 5-4 decision, the Court declined to do so.

(click to enlarge for a better view)

As is customary, the Court's order was unsigned. But Justices Thomas, Alito, Gorsuch, and Kavanaugh did go on record that they disagreed and would have granted Trump's request.

Most notably, perhaps, Justice Amy Coney Barrett, who, like Gorsuch and Kavanaugh, was appointed by Trump, joined Chief Justice Roberts and the three liberal Justices--Sotomayor, Kagan, and Jackson--to deny Trump's request. She is increasingly showing signs of independence and distance from the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Her vote in this case is another illustration of what appears to be her emergence as a moderating voice within the 6 - 3 conservative Republican majority. 

Here are some other recent examples:

Trump v. U.S. is, perhaps, the most publicly debated decision of the last term. The 6-3 majority, speaking through Chief Justice Roberts, ruled that presidents--here, Donald Trump--are absolutely immune from criminal prosecution for any acts in the course of exercising core presidential functions. They are also presumptively immune regarding other presidential functions.

Justice Barrett, while labeling her separate opinion a concurring one, actually dissented in major part:

I agree with the dissent that the Constitution does not justify such an expansive view.... [For example,] a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.

Barrett also took direct aim at the majority's rule prohibiting any mention of the protected presidential function related to the president's criminal activity. That made little sense, according to Barrett. It effectively precluded prosecution, not only for the exercise of a presidential function, but for the clearly criminal conduct itself:

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution...excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability. 

[I cannot resist adding that several Justices, who insist that they adhere to the text of the Constitution and do not make policy, nevertheless embraced presidential immunity, which is nowhere mentioned in the Constitution, and they did so purely for policy reasons.Which is not to say anything about the merits of the policy. Only that it is policy, and not constitutional text.]

Trump v. Anderson, although not as heatedly debated as the immunity decision, is no less controversial among constitutional and judicial scholars. The seemingly plain language of the 14th Amendment's section 3 declares that an insurrectionist is simply disqualified from holding any official government office: No person shall...hold any office...under the United States, or under any State, who...shall have engaged in insurrection or rebellion.

Despite that language of automatic disqualification, the Court, in a per curiam opinion, unanimously rendered a practical decision that "States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

The Court was divided 5-4, however, on an equally critical matter. If a state cannot enforce the disqualification under the 14th Amendment and keep an insurrectionist off the state's ballot, then who can? The 14th Amendment says nothing about that. Again, it simply declares that an insurrectionist is ineligible to hold office, without any conditions. But the bare majority of five held that the "responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress." 

Among the remaining four Justices, three of them--Sotomayor, Kagan, and Jackson--in a joint opinion, took issue with the majority for deciding a question unnecessary to the case and deciding it wrongly:

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation...In doing so, the majority shuts the door on other potential means of federal enforcement.... It [for example,] forecloses judicial enforcement of that provision....[N]othing in Section 3’s text supports the majority’s view. 

Justice Barrett--like the three liberal Justices, but in a very brief, restrained separate opinion--said that the majority should not have specified a single, lone means of enforcing the insurrection disqualification of the 14th Amendment. Not only was that unnecessary, but at a particularly volatile time, it generated intense disagreement within the Court--which she also viewed as unfortunate. As she put it, this case,

does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. 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. 

In another case related to the January 6, 2020 rioters at the Capitol, Fisher v. U.S., the Court ruled that the phrase "obstruction of an official proceeding," as used in the Sarbanes-Oxley Act of 2002, was intended to apply only to impeding official access to records, documents, and similar evidentiary objects.

Justice Barrett--writing for herself and liberal Justices Sotomayor and Kagan--disagreed with the other five Republican appointees (who were joined by Justice Jackson).

Barrett minced no words. In her view, the statute's application was "straightforward," and the majority was stretching the limits of the judicial role by limiting the very terms the legislature chose. The actions of the January 6 "mob" clearly fit within the scope of the statute:

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. 

The Court...does textual backflips to find some way— any way—to narrow the reach of [the statutory language].

In other cases, unrelated to the conduct of Trump or the January 6 "rioters," Barrett also broke with her more natural conservative Republican allies on the Court. A brief glimpse at her positions in a sampling of these demonstrates an unmistakably independent, more moderate jurisprudence.

In Ohio v. Environmental Protection Agency, she dissented--joined by the three liberal Justices--from the majority's holding that the EPA's "Good Neighbor Rule" [i.e., protecting downwind states from upwind states' air pollution] was, in the words of Justice Gorsuch, "arbitrary" and "capricious." Barrett criticized the majority for underestimating the consequences of its decision to block the EPA rule: “leav[ing] large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”

In the Murthy case, Barrett wrote for a 6-member majority, above the dissent of the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Rejecting the lawsuit brought against Biden administration officials for communicating with social media companies, Barrett explained that the complaining parties failed to show any "substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.”

In the Chiaverini case, Barrett joined that same 6-Justice majority over that same 3-Justice dissent. She signed onto Justice Kagan's opinion that upheld the validity of a malicious-prosecution claim based on a legally meritless criminal charge, even if there was some justification--i.e., probable cause--for some other charge in the same criminal proceeding. 

In Moore v. Harper, Barrett again joined the six-judge majority over the dissent of Thomas, Alito, and Gorsuch. This time, she agreed with Chief Justice Roberts's opinion that the Constitution, although giving state legislatures the power to draw the lines for congressional districts, did not mean free a state legislature to violate state constitutional law or decisional rulings in doing so.

Finally--for this post at least--in Haaland v. Bracken, Barrett penned the majority opinion, over separate dissenting opinions of Justices Thomas and Alito. (Justice Gorsuch joined the majority to embrace, as he usually does, the position more favorable to Indian tribes.) The Court, in an opinion by Barrett, upheld the constitutionality of the Indian Child Welfare Act of 1978. Among other provisions, aimed at keeping Native American children with Native American families, the Act mandates a preference that Native American children, who are removed from their biological families, be placed with extended family members or other Native homes. 

Again, this is just a sampling of cases in which Justice Amy Coney Barrett sided with positions opposed by other conservative Republican appointees on the Court. Sometimes her positions differed from those adopted by all the other five Republican appointees. Sometimes she was at odds with only the three most politically conservative Justices--agreeing not only with the Court's three liberals (Sotomayor, Kagan, and Jackson), but also with the Court's other more moderate conservatives (Roberts and Kavanaugh). 

The point here is not whether Justice Barrett's positions are preferable when she opposes the more politically conservative positions of some of her colleagues. [Although--disclosure--I do personally prefer her positions.]

Or that her positions are more legally correct. [Unless one is ideologically blind, it must be acknowledged that there are strong legal arguments on both sides in these cases.]

Nor is the claim here that Barrett is turning liberal. No, she still joins the politically conservative Justices on most issues that divide the Court. [Again, unless one is ideologically blind, it's hard to be certain that she is less wise and fair when she's with the conservatives and more so when she opposes them.]

The only point here is that Justice Barrett is showing an independence--at least some significant sparks of it-- from her more politically natural allies on the Court. In this regard, she may be less of what political liberals feared the most about her. Indeed, she may be evolving--like Justice Sandra Day O'Connor did--to become a centrist on the Court who typically avoids the more ideological extremes-- of either side of the Court's spectrum.

[I, for one, do hope so.] 

Splinters in the 6-3 Supreme Court (Part 1: Amy Coney Barrett)

In the last few months, I've been busy with lectures (CLEs and other presentations) on the Supreme Court and the New York Court of Appeals. I thought I'd share here on New York Court Watcher some of what my research in preparation for the presentations revealed--or simply confirmed--about the Supreme Court. [I've previously shared much of what I found about changes at the New York Court in a host of earlier posts. See e.g., Part 6, Who's Dissenting?--NYCOA: The Wilson Uptick]

Let's start with Justice Amy Coney Barrett. Her appointment by former President—and now President-Elect Donald Trump—turned a previously 5-Conservative versus 4-Liberal balance on the Court into a 6-3 one. Her replacement of the deceased liberal Justice Ruth Bader Ginsburg had dramatic ramifications.

[Regarding the terms liberal and conservative, see below at *.]

(click to enlarge for a better view)

Yes, an ideological change was certainly to be expected in voting and in the Court's overall decisional patterns. The numbers show that the change, especially in voting, was indeed nothing short of drastic—for good or bad. Take a look at the following graphs.

This first one shows the politically conservative [see below at *] voting record of each Justice and the decisional record of the Court as a whole in the last term, 2019-2020, with Justice Ginsburg still on the Court.

(click to enlarge for a better view)

As shown, in cases where there was a clear politically conservative position on the issue and a clear politically liberal one, the Court's decisional record was virtually 50-50. Nevertheless, the division between the conservative and liberal Justices was stark. For example, the most moderate conservative Justice, Chief Justice Roberts, voted almost four times as conservatively as the most moderate liberal Justices, Kagan and Breyer.

At the extreme ends of the Court's political spectrum were Justices Alito and Thomas on the conservative side, and Justices Sonya Sotomayor and Ginsburg on the liberal one. Those two sides virtually never supported the politically opposite position.

Regarding Justice Ginsburg herself, she voted for the politically conservative position only 4% of the time. In other words, her record was 96 to 4, liberal to conservative.

Let's now take a look at the voting and decisional records for the very next year, the 2020-2021 term, with Justice Barrett in place of Justice Ginsburg. 

(click to enlarge for a better view)

As shown in this graph, the Court's decisional record was decisively more politically conservative than it was the year before—62% compared to 48%. The political division between the conservative and liberal Justices continued to be extremely stark—e.g., Roberts's 68% conservative voting to Kagan's 18%. 

And not surprisingly, the major difference was Justice Barrett. While Justice Ginsburg's record the year before was 4% conservative, her replacement, Justice Barrett's record was 76% conservative. So, the ideological voting by the Justice in that one seat on the Court changed from 4 to 76 percent politically conservative. The following graph, by juxtaposing some of the salient figures of the previous two graphs, makes clear just how dramatic that change was.

(click to enlarge for a better view)

As depicted in this graph, the ideological voting patterns of Justices Gorsuch and Kavanaugh--the other two Trump appointees--remained virtually the same from one year to the next. This is strong evidence that the ideological balance of the cases in the two years had not changed. It was the Ginsburg-Barrett seat that experienced ideological change--and an extraordinary change in the politically conservative direction it was. Again, 4% to 76% conservative.

That change, no doubt, was largely responsible for the 48% to 62% increase in the Court's conservative decision-making. To recap all of the foregoing briefly—and unsurprisingly—Justice Barrett's voting was much more politically conservative than her liberal predecessor, Justice Ginsburg, and, consequently, the Court's record became more conservative.

BUT.... And there's usually a "but."

Take a look at the Justices' voting record and the Court's decisional record three years later—the Court's last completed term, 2023-2024.

(click to enlarge for a better view)

The Court's ideological decision record was virtually identical to that of three years earlier. The same is true for the ideological schism between the three politically liberal and six politically conservative Justices. But Justice Barret's record was less conservative this past term.

In fact, her record was the least conservative of all the conservative Justices. Only 60% politically conservative. Or 40% politically liberal! In the next post, we'll take a look into some of that record.

*[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021):

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues. These are the issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.
"Anyone who follows politics and courts can surely identify a list of such issues. Among the most salient are those dealing with the separation of church and state, gun rights, LGBTQ rights, abortion, affirmative action, immigration, the death penalty, business regulation, and in recent years, just about anything involving [Donald] Trump.]