ON 7 OCTOBER the United States Supreme Court began hearing oral arguments in a term in which it will address several issues, including whether the Biden administration acted within its authority when it ruled that so-called “ghost guns” – firearms that can be assembled from a kit – can be regulated under a landmark gun control law. The court will also review a Tennessee law banning some treatments for transgender youths and it may revisit the question of whether Donald Trump is immune to prosecution for some of his attempts to overturn the 2020 election.

As always, the decisions of nine life-tenured justices will be closely followed by the public and political actors. But the actions of one justice will likely be especially scrutinised by journalists and other court watchers: Justice Amy Coney Barrett. Barrett, 52, the third of former president Donald Trump’s appointees to the court and a law clerk for the late Justice Antonin Scalia, has exercised a fascination for students of the court from the time she was confirmed by the Senate shortly before the 2020 election. For one thing, she studied law not at Harvard or Yale, like all of her colleagues, but at the University of Notre Dame, where she was later a longtime professor. But the interest in Barrett goes back to her selection by Trump for a federal appeals court in 2017.

During a Senate committee hearing on her appeals court nomination, the late Senator Dianne Feinstein told Barrett that – in what seemed an obvious reference to Barrett’s Catholicism – “dogma and law are two different things. And
I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

Another senator, Mazie Hirono of Hawaii, questioned Barrett about an article she co-authored suggesting that a Catholic judge who was faithful to the church’s teaching against capital punishment should recuse herself from imposing a death sentence. Hirono seemed to think that position was incompatible with the notion that justice was supposed to be blind. But a judge’s decision to recuse from a case is different from allowing religious views to shape an actual decision.

The notion that Barrett’s religious views might compromise her impartiality was also fuelled by reports about her family’s ties to People of Praise, a charismatic Christian group. After Trump nominated Barrett to the high court, The New York Times published an article reporting that “even in the context of devout faith communities, members of the People of Praise are deeply embedded in one another’s lives”.

Yet almost four years after she was sworn in as a justice, Barrett is increasingly viewed not as a religious zealot but as a deliberate and well-prepared jurist who is willing in some cases to break ranks with other conservative justices.

Some of the praise has come from surprising quarters. In May, Ruth Marcus, a columnist for the Washington Post, wrote that Barrett “has been what passes for a pleasant surprise”. Marcus added: “Barrett’s long-standing ties to a conservative Catholic group, People of Praise, raised warnings that she would be an eager handmaid to the conservative male majority; in reality, Barrett has been no submissive pushover.” Richard L. Hasen, a law and political science professor at the University of California Los Angeles, agreed that Barrett is “somewhat more open on some issues” than Justices Samuel A. Alito Jr and Clarence Thomas.

Elizabeth B. Wydra, president of the Constitutional Accountability Center, a group “dedicated to fulfilling the inherently progressive promise of the Constitution’s text, history, and values”, noted that “there’s definitely a difference between her and some of her conservative colleagues in tone and rhetoric and interpretive emphasis”. But Wydra cautioned that so far Barrett’s approach “hasn’t manifested a difference in outcome”.

Richard W. Garnett, a professor of law and political science at the University of Notre Dame, suggests that there’s nothing surprising about Barrett’s performance on the court. “The methodology she has been applying with respect to, for example how to use history or how to do statutory interpretation, you can see that in the seeds of her academic work.”

Yet some observers have been surprised by the nuanced path Barrett has followed, an approach evident even when the subject is religious liberty. In 2021 she joined in a unanimous decision holding that the city of Philadelphia violated the religious liberty of a Catholic social service agency when it refused to renew a contract under which the agency helped to place children with foster parents. The city said that it wouldn’t contract with the Catholic agency because it wouldn’t certify same-sex couples as foster parents.

In its appeal, the Catholic agency had suggested that the high court should reconsider a 1990 decision in which it said that religious motives would not excuse failure to comply with generally applicable laws, although its lawyers said that repudiating that precedent wouldn’t be necessary for their clients to prevail. (The 1990 case involved the use of peyote in a Native American religious ritual.) In a concurring opinion, Barrett said she saw no reason to decide in this case whether the earlier decision should be overruled. By contrast, Alito wrote that the 1990 ruling was “ripe for re-examination”.

BARRETT FOLLOWED a somewhat separate path in the most controversial decision of the court’s last term: a ruling that Trump enjoys significant immunity from prosecution for official acts as president, leaving for a lower court the decisions about whether some of his actions qualified as official. Barrett joined most of Chief Justice John G. Roberts Jr’s majority opinion, but in a partially concurring opinion she offered an alternative, more streamlined approach to deciding immunity questions. “Properly conceived,” she wrote, “the president’s constitutional protection from prosecution is narrow.”

After the court’s immunity decision, Jack Smith, the special counsel who is prosecuting Trump for his actions in connection with the 2020 election, obtained a superseding indictment and has filed a brief asserting that various actions taken by Trump were not official. “Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one,” according to the brief.

If the trial judge agrees and Trump’s lawyers appeal her ruling, Barrett’s separate opinion in the immunity decision might signal more sympathy for the special counsel’s position than other justices may be willing to extend. “It definitely seems that by writing separately she showed that she’s much more amenable to holding Trump accountable under the criminal law,” Wydra told me. (But, as Hasen noted, Barrett’s view would be irrelevant if Roberts and the four other justices who joined fully in his opinion in that case rejected the special counsel’s framing of Trump’s actions.)

IT ISN’T JUST Barrett’s written opinions that have contributed to her image as a serious justice. She has proved a skilled and supple questioner during oral arguments, audio of which is now available to the public on the court’s website. During such arguments, justices often challenge lawyers with twisty and sometimes tendentious hypotheticals. For example, when the “ghost gun” case was argued on 8 October, Alito asked Solicitor General Elizabeth B. Prelogar, the lawyer for the Biden administration: “If I … put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelette?”

After Prelogar answered No, because those items could be used to make something other than an omelette, Barrett chimed in with a helpful alternative hypothetical: “Would your answer change if you ordered it from HelloFresh, and you got a kit and it was like turkey chilli but all of the ingredients are in the kit?” Prelogar said Yes, suggesting that an omelette-making kit was “the more apt analogy”.

Even those who have praised Barrett for sometimes following her own path must acknowledge that she remains a usually reliable member of the court’s conservative bloc; she did, after all, join the majority in Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overruled Roe v. Wade. That decision continues to reverberate in national politics, including in the presidential race between Trump and Vice-President Kamala Harris.

Beyond abortion, Barrett’s philosophy of judging has affinities with those of other justices. As Garnett put it: “With a number of them including Justice Barrett, there is a sense that what judges are supposed to be doing is finding the meaning of the text that they’re interpreting. There was a time 40 years ago when that wasn’t necessarily what the judicial role was.” But he added that Barrett’s textualist approach can overlap not only with that of the longstanding originalist Thomas but also with that of Justice Elena Kagan, a Barack Obama appointee.

Like her colleagues, Barrett must contend with a perception that judges are “politicians in robes”, the result of major decisions in which members of the court break down on the basis of the party of the president who appointed them. In a 2021 speech, she said that her goal was “to convince you that this court is not comprised of a bunch of partisan hacks”. The more she – and other justices – stake out an independent course the more credible that assurance will be.