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In June 2024, a divided US supreme court handed Donald Trump a get-out-of-jail-free card. Across 43 pages, chief justice John Roberts demolished the long-held belief that a president is not above the law. For Trump, who once bragged that he could shoot someone on Fifth Avenue and get away with it, Christmas had come early.
Justice Amy Coney Barrett, a Trump appointee, joined the majority but voiced doubt all the same.
“Congress has concurrent authority over many Government functions,” she wrote, “and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute. Article II” – the constitutional provision concerning presidential power – “poses no barrier to prosecution in such cases.”.
A year on, Trump runs amok, forever touting his enhanced powers under Article II.
“A lot of people are saying: ‘Maybe we like a dictator,’” he teased recently. “I don’t like a dictator. I’m not a dictator.”
Au contraire, his past self might’ve parried. Before returning to office, Trump said he would be a dictator on day one.
Amid it all, Barrett plugs her book. At a recent forum hosted by Bari Weiss, founder of the Free Press, the second-most junior justice affected nonchalance.
“I don’t know what a constitutional crisis would look like.”
“I don’t think that we are currently in a constitutional crisis.”
“I think our country remains committed to the rule of law.”
“I think we have functioning courts.”
When supreme court justices speak, utterances like “I think” and “I don’t know” convey more than a modicum of doubt. Barrett does not offer comfort.
Listening to the Law is clearly written. Mixing memoir and civics, her book explains Barrett’s rationale for voting to overturn Roe v Wade, by which the court removed the federal right to abortion; tweaks Roberts for salvaging a pillar of Obamacare; and delivers a parting shot at Joe Biden.
Back in 2022, when the court issued its abortion decision in Dobbs v Jackson, Samuel Alito (appointed by George W Bush) wrote the majority opinion. Clarence Thomas (appointed by George HW Bush) and Brett Kavanaugh (a Trump appointee) joined with Alito but also penned separate individual concurrences. Barrett and Neil Gorsuch (another Trump appointee), voted with the majority but otherwise stayed mum.
Now, Barrett says Roe v Wade lacked textual support and political buy-in. Nor did time add legitimacy. For her, Roe (decided in 1973) was not akin to Brown v Board of Education, the 1954 decision that outlawed segregation in public schools, because the 14th amendment expressly secures the right to equal protection but is silent on abortion.
“The Supreme Court redeemed both itself and the 14th amendment’s promise – albeit after decades of injustice – in Brown,” Barrett writes.
“It’s impossible to say that a supermajority of Americans has traditionally considered abortion access so obviously fundamental to liberty that the constitution protects it even without explicitly saying so.”
Time to turn to the numbers: “63% say abortion should be legal in all or most cases, while 36% say it should be illegal in all or most cases,” Pew Research reports. In 2022, in the first election after Dobbs, voters in Kansas embraced individual autonomy and reproductive rights. A year later, in 2023, Ohio, Virginia and Kentucky followed, even as Ohio and Kentucky remained Republican-run.
Without mentioning Roberts by name, Barrett dings him for sustaining tax credits that underlie the Affordable Care Act, AKA Obamacare, hated target of the right for 15 years and more. Criticizing the majority’s reasoning in a 2015 case that upheld part of the ACA, she writes: “I was not on the Court when it decided King v Burwell. As a law professor, however, I wrote an article expressing the view that the dissent had the better of the argument.”
If you want to get into the weeds, it was a matter of statutory construction. On a similar score, Barrett recalls Biden v Nebraska. In that 2023 decision, the court determined that the 46th president’s loan-forgiveness program lacked necessary statutory and factual predicates. Six justices held that Biden could not revamp the student loan program on a foundation of 9/11-era legislation – the Higher Education Relief Opportunities for Students Act of 2003 – and Covid-19.
Again, irony rears its head. Trump at the time praised the outcome, saying: “Today, the Supreme Court … ruled that President Biden cannot wipe out hundreds of billions, perhaps trillions of dollars, in student loan debt, which would have been very unfair to the millions and millions of people who paid their debt through hard work and diligence, very unfair.”
Now, Biden v Nebraska may now doom Trump’s tariffs. Last month, the US court of appeals cited the case as it branded the tariffs illegal.
“In this respect, the Government’s argument resembles the argument expressly rejected by the Supreme Court in Nebraska, where the Court concluded that Congress’s authorization to the Secretary of Education to ‘waive or modify’ laws and regulations governing student debt did not encompass student debt relief.”
The case heads to the supreme court. Whether Barrett and the five other conservatives adhere to recent precedent is a live question. As a group, they appear to bend over backwards for Trump.
Not surprisingly, Barrett has little to say about January 6 and the attack on Congress Trump incited, except to remind us that the supreme court unanimously struck down a Colorado law that would have barred Trump from the 2024 ballot as a result of the riot. As the court saw things, the states could not unilaterally enforce the anti-insurrection provisions of the 14th amendment.
Then there’s Trump’s continued hints about seeking a third term. Questioned by Fox News, Barrett was predictably non-reassuring.
Fox: “The 22nd amendment says you can only run for office for two terms.”
Barrett: “True.”
Fox: “You think that’s cut and dry?”
Barrett: “Well, you know, that’s what the amendment says.”
It wasn’t exactly a ringing rejection. Stay tuned.
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Listening to the Law is published in the US by Penguin Random House
