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Has Amy Coney Barrett Gone Rogue?

Newsweek 2024/10/5

Supreme Court Justice Amy Coney Barrett's concurring opinion in Donald Trump's immunity case has fueled speculation that she has broken ranks with the court's conservative majority.

In recent months, Barrett has had open spats with Justice Clarence Thomas, the court's most conservative member—even interrupting Thomas' pro–gun lobby questions during oral arguments in United States v. Rahimi to read from a barring order Rahimi's former girlfriend had obtained from a Texas court, which detailed his violence toward her.

Though siding with the court's conservative justices in their July 1 ruling on the presidential immunity case, Barrett broke with the majority in saying that while Trump enjoyed some immunity from prosecution, his official acts as president could be used as evidence of crimes in his non-presidential roles.

Colleen Kerwick, an attorney in New York, told Newsweek that Barrett's opinion in the Trump immunity case had "diluted" the opinion of the conservative majority. However, she said the justice wasn't "going rogue."

"To the contrary," Kerwick said, "she is demonstrating that she isn't beholden to anyone."

Has Amy Coney Barrett Gone Rogue?
A composite image of Supreme Court justices, including Justice Amy Coney Barrett. The Trump appointee has voted against the conservative majority in key decisions.

Last year, Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump, the front-runner for the 2024 Republican presidential nomination, has pleaded not guilty to all charges and has repeatedly said they are part of a political witch hunt. He had sought full immunity from the Supreme Court.

In her opinion, Barrett identified some of Trump's acts that she said were private and could be prosecuted, citing as an example Trump's alleged decision to put forward an "alternative" slate of state electors to nominate him for the presidency.

"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 wrote.

She disagreed with the majority's ruling that official presidential acts could not be used as evidence to indict Trump for private conduct, adding that such a formula would "hamstring" prosecutions. Newsweek has contacted Barrett's office for comment.

amy coney barrett
Barrett posing for an official portrait in the Supreme Court building in Washington, D.C., on October 7, 2022. The associate justice has disagreed with the conservative majority in recent decisions.

On June 26, Barrett and two other conservative justices sided with President Joe Biden's administration in a dispute with Republican-led states about social media.

In a 6-3 ruling on Murthy v. Missouri, in which Barrett wrote the opinion, the Supreme Court said Republican states and individual conservative plaintiffs don't have standing to sue administration officials over social media platforms' content moderation decisions regarding COVID-19 misinformation.

Justice Samuel Alito wrote a dissenting opinion, in which he was joined by Thomas and Justice Neil Gorsuch.

Louisiana, Missouri and other parties in the case had argued that the Biden administration had tried to prevent conservative views from being seen on social media. In her decision for the majority, Barrett wrote that the plaintiffs had neither the right nor the legal standing to sue.

Outlining the facts of the case, Barrett said: "During the 2020 election season and the COVID–19 pandemic, social-media platforms frequently removed, demoted, or fact checked posts containing allegedly false or misleading information."

In the Rahimi case, the plaintiff challenged a federal law that prohibits people under a barring order from owning a gun.

During oral arguments in November, Thomas asked Rahimi's lawyer why a civil remedy, such as a barring order, was being used in a criminal case. As he did so, Barrett took out a copy of the barring order, showing that Rahimi had beaten his girlfriend and that she and her daughter lived under daily fear that he would return.

Regarding Barrett's opinion in the immunity case, Kerwick said: "It is interesting that Justice Barrett diluted the majority opinion by opining that immune acts could be admissible unless their probative value is outweighed by its prejudicial effect. This would have the net effect of eviscerating immunity."

"With respect to the decision concerning presidential immunity, she was the calm in the storm," she added. "The majority focused on a need to protect 'strong, energetic and vigorous leadership.'"

"Barrett agreed that the threat of criminal prosecution would dampen a president's ardor but qualified that if a president commits a crime related to unprivileged acts that we can look at his privileged acts for proof of criminal intent," Kerwick continued, adding, "Most students of the law would agree with Barrett's opinion."

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