Justice Amy Coney Barrett is the junior member of the Supreme Court’s conservative supermajority, having served just three full terms. But her vote may be decisive as the justices consider whether and how hard to push back against President Trump’s efforts to reshape American government.
On Wednesday, for instance, she was the only one of the three justices appointed by Mr. Trump to vote against his emergency request to freeze foreign aid, joining the court’s three Democratic appointees and Chief Justice John G. Roberts Jr. to form a bare majority.
The ruling was provisional and tentative, only the first of what will certainly be a series of more consequential tests of the limits of Mr. Trump’s power to come before the court. But it suggested that the president cannot count on the court backing every element of his efforts to expand the authority of the executive branch, and it has already drawn sharp condemnations of Justice Barrett by some of the president’s allies.
Some scholars welcomed the ruling’s willingness to police the boundaries of the separation of powers by a court whose direction has at times been shaped by the executive branch experiences of most of its conservative members.
Payvand Ahdout, a law professor at the University of Virginia, said the message sent by Wednesday’s preliminary action was that a majority of the court was “open to a role for judicial review of these decisions.”
“They just have not yet reached consensus on what that judicial role is,” she said.
Justice Barrett, she added, appears to have an open mind on the limits of the president’s authority. “It seems like she is not coming into these disputes already subscribing to a philosophy that closes the door to reasonable limits on the presidential power,” Professor Ahdout said.
Justice Barrett’s vote on Wednesday was part of a larger trend. In the term that ended in July, she was the Republican appointee most likely to vote for a liberal result.
The same five-justice coalition that ruled against Mr. Trump on Wednesday rejected his request in January, just days before his inauguration, to be spared from being sentenced for 34 felonies on charges of falsifying business records. (A New York judge went on to uphold his felony conviction but sentenced him to an “unconditional discharge” that carried no punishment.)
Last month, when the court ruled that Mr. Trump could not immediately remove the leader of the watchdog agency that protects whistle-blowers, Justice Barrett did not disclose her vote but also did not join a dissent from Justice Neil M. Gorsuch, a fellow Trump appointee.
Those three orders are not a large data set, and the two most recent rulings — on Mr. Trump’s efforts to slash government spending and to fire the leader of an executive agency — were notably preliminary. Still, they were a striking indication that five justices are prepared to scrutinize and perhaps block at least some of Mr. Trump’s more boundary-testing programs and plans.
Wednesday’s decision involved the limits of the president’s power to impound money that Congress has directed him to spend. That is an extremely consequential question, said Laurence H. Tribe, a law professor at Harvard and a frequent critic of Mr. Trump, adding that the recent order may be telling.
Professor Tribe said the decision suggested the conservatives “will remain one justice short of letting presidential power trump Congress’s power of the purse.”
In dissent, Justice Samuel A. Alito Jr. wrote that he was “stunned” that the court would allow a single lower-court judge’s order thwarting Mr. Trump’s aid freeze to stand, even temporarily.
Justice Barrett was rushed onto the court by Mr. Trump and Senate Republicans after Justice Ruth Bader Ginsburg, a liberal icon, died in September 2020. Justice Barrett joined the court the next month, just before the presidential election.
She had served as a law clerk to Justice Antonin Scalia, a giant of the conservative legal movement who died in 2016; as a law professor at Notre Dame; and on the federal appeals court in Chicago, where her most notable opinion was a dissent calling for broader Second Amendment rights. In 2006, when she was a law professor, she signed a statement in a newspaper advertisement opposing “abortion on demand.”
There was little in her background, then, to suggest that she would be anything other than a conventional and reliable member of the court’s conservative wing.
But Justice Barrett’s role in the recent cases has given rise to a powerful backlash from former supporters.
“Barrett deceived people into thinking she was a reliable constitutionalist,” Mark Levin, a conservative podcaster, said on social media. “The power has gone to her head.”
His post was part of a flood of anti-Barrett messages from Mr. Trump’s supporters on Wednesday, including some suggesting the justice was chosen because of her gender and casting her as “a DEI hire.”
Comments like that have led to a schism on the right.
“I can’t begin to understand supposed legal conservatives who give Justice Barrett zero credit for being the 5th vote to overturn Roe,” Ed Whelan, a conservative legal commentator, wrote on social media, referring to the 1973 decision establishing a constitutional right to abortion.
He also applauded her votes to do away with race-conscious admissions in higher education and to overturn a foundational precedent requiring courts to defer to executive agencies.
Mr. Trump’s lawyers took a confident tone in their recent requests for Supreme Court intervention. One case, they said, involved “an unprecedented assault on the separation of powers.” The other, they said, was “an extraordinary usurpation of the president’s authority.”
The unsigned majority opinions in the two cases responded with brief and bland observations but an unmistakable bottom line: For now, at least, lower-court rulings against Mr. Trump would stand.
That sent a message to Americans not inclined to parse and untangle the technicalities of the legal process, including the orders’ references to administrative stays and whether temporary restraining orders are subject to appeal.
The message was that the court is, at the least, on alert.
Tara Leigh Grove, a law professor at the University of Texas, singled out a sentence in Wednesday’s ruling, one saying the government had not challenged its obligation to follow a trial judge’s directive.
“Given the recent talk about compliance with federal court orders,” Professor Grove said, “this struck me as a not-so-subtle hint from the majority that they view obedience to federal court orders, including those by federal district courts, as extremely important.”
Justice Barrett’s votes in other recent cases support the idea that she does not march in lock step with her fellow conservatives. On Tuesday, she wrote the dissenting opinion in a 5-to-4 decision limiting the Environmental Protection Agency’s power to address water pollution. It was joined by the court’s three-member liberal wing — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
In June, Justice Barrett wrote a dissent for the same coalition in a decision making it harder for the agency to combat air pollution.
Those rulings underscored another point about the court’s dynamics. The three liberals cannot prevail even with Justice Barrett’s support unless they can attract a fifth vote. The most likely one belongs to the chief justice.
He was long viewed as an incrementalist and an institutionalist, favoring modest steps and broad coalitions to sustain his court’s authority and legitimacy. That assessment was undermined in the term that ended in July, which included three opinions from the chief justice delivering major victories to Mr. Trump.
Over the two decades he has led the court, though, Chief Justice Roberts has cast a series of votes that frustrated his usual conservative allies. His was the decisive vote, for instance, to uphold the Affordable Care Act, President Barack Obama’s signature legislative achievement.
The chief justice has also tangled with Mr. Trump, rebuking him after he criticized a federal judge who had ruled against his administration’s asylum policy.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts said in a statement in 2018. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
In his first administration, Mr. Trump’s record at the court was poor, according to data compiled and analyzed by Lee Epstein and Andrew D. Martin, both of Washington University in St. Louis, and Michael J. Nelson of Penn State.
In signed decisions in orally argued cases in which the United States, an executive department, an independent agency or the president himself was a party, he prevailed only 42 percent of the time, the lowest rate since at least Franklin D. Roosevelt’s administration. The Biden administration, by contrast, was on the winning side 54 percent of the time.
But Mr. Trump does not seem to have lost faith in Chief Justice Roberts or the court. On Tuesday, after his address to Congress, as the two men shook hands, Mr. Trump said: “Thank you again. Thank you again. Won’t forget.”
He did not explain what he was grateful for, but in July, the chief justice wrote the majority opinion granting Mr. Trump substantial immunity from prosecution. Mr. Trump later said that he had been thanking the chief justice for “swearing me in on Inauguration Day.”
Justice Barrett looked on impassively, her jaw set.
