The knee-jerk reaction to Supreme Court Justice Amy Coney Barrett’s first term was that she was less conservative than some had hoped and others had feared.
But those judgments are likely to be premature, because the real tests for Barrett will come over the next year, in her second term as a justice.
The 49-year-old Barrett, for example, was lampooned by Democrats as a threat to health care during her confirmation hearings last year, but then ruled against a challenge to the Affordable Care Act in this year’s term.
Barrett is likely to be a crucial and possibly a deciding vote on two huge cases on hot-button culture war issues: abortion and guns. How she rules on those cases will illustrate the kind of justice she is and will be, and could end up becoming an enormous part of her legacy and the courts.
The abortion case is Dobbs v. Jackson Women’s Health Organization. At issue is a law passed by the Mississippi Legislature in 2018 that banned most abortions after 15 weeks of pregnancy. A federal court found the law unconstitutional because Supreme Court jurisprudence prohibits bans on abortion before a fetus is viable outside the womb, which is considered to be at around 24 weeks of pregnancy.
The Supreme Court could uphold the lower court’s ruling, but most observers think that’s unlikely. Some also believe it is unlikely to throw out Roe v. Wade, the 1973 ruling that legalized abortion, and Planned Parenthood v. Casey, the 1992 ruling that upheld a constitutional right to abortion.
The middle ground would be for the court to get rid of the viability threshold, allowing states to enact bans on most abortions prior to 24 weeks of pregnancy, but to replace it with a different standard.
This is where politics comes into play.
The three most conservative justices — Samuel Alito, Clarence Thomas, and Neil Gorsuch — are all considered likely to throw out Roe v. Wade if the opportunity were presented to them. The three liberal justices — Stephen Breyer, Elena Kagan, and Sonia Sotomayor — would keep it in place. But the three others — Barrett, Chief Justice John Roberts and Brett Kavanaugh — constitute a swing bloc of sorts that controls who gets a majority of votes.