Barrett Pens First Opinion; Draws Dissent in Break with Tradition

March 5, 2021 by Dan McCue
Judge Amy Coney Barrett, President Donald Trump's nominee for the US Supreme Court, looks on during a meeting with Senator Kevin Cramer (R-ND) on Capitol Hill in Washington, DC on October, 1, 2020. (Erin Scott/POOL/AFP via Getty Images/TNS)

WASHINGTON – Justice Amy Coney Barrett released the first majority opinion of her Supreme Court career Thursday, ruling against an environmental group that had sought access to government records.

The decision prompted a dissent from two liberal justices Stephen Breyer and Sonia Sotomayor, which was something of a break from tradition.

Most new justices are assigned a case in which court is unanimous for their first opinion.

The case is U.S. Fish and Wildlife Service v. Sierra Club. In ruling against the environmental group, Barrett said the records being sought were protected by an exemption to the act that shields documents that would disclose deliberations inside an agency before it makes a final decision.

The exemption applied, she wrote, even to documents reflecting agencies’ last words on a given subject.

“A document is not final solely because nothing else follows it. Sometimes a proposal dies on the vine,” she wrote.

“That happens in deliberations — some ideas are discarded or simply languish,” she continued.

 “Yet documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen course. What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”

The dispute extends back to 2011, when the Environmental Protection Agency proposed a new regulation to govern cooling water intake structures at power plants, which can harm fish and other aquatic life.

Under the Endangered Species Act, the agency was required to consult with two other units of the federal government, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, to gauge and address harm the regulation would do.

The services prepared draft documents saying that the proposed regulation would not do enough to protect endangered species and in the end, the E.P.A. ‘s final regulation was more stringent than the one it had initially proposed.

The Sierra Club sued to obtain the documents under the freedom of information law, and it won in the Ninth Circuit, where a  divided three-judge panel ruled that the draft opinions represented the services’ final conclusions and so had to be disclosed.

Reversing that ruling, Barrett wrote that it was not enough that the drafts “proved to be the agencies’ last word about a proposal’s potential threat to endangered species.”

Officials at federal agencies must be free to deliberate out of public view, she wrote. Quoting an earlier decision, she said agencies must not be “forced to operate in a fishbowl.”

In a dissent penned by Breyer and joined by Sotomayor, the judges on the losing side of the argument said given “the likely finality of a Draft Biological Opinion, its similarity to a Final Biological Opinion, the similar purposes it serves, the agency’s actual practice, the anomaly that would otherwise exist depending upon the presence or absence of a private party, and the presence of at least some regulation-based legal constraints—convince me that a Draft Biological Opinion would not normally enjoy a deliberative privilege from FOIA disclosure.”

Breyer continued: “The question remains whether the particular documents at issue here are Draft Biological Opinions or Drafts of Draft Biological Opinions. As the majority points out, there are reasons to believe some of them may be the latter. See ante, at 7, n. 4, 9.

“The National Marine Fisheries Service’s documents contain highlighting and editing marks reflective of a work-in-progress. But the Fish and Wildlife Service documents do not, and the record indicates they may have been complete but for a final signature.

“Given the fact-intensive nature of this question, I would remand to allow the Court of Appeals to determine just how much work was left to be done. If the court determines that the documents are merely Drafts of Draft Biological Opinions, I agree with the majority that a segregability analysis would be appropriate,” Breyer wrote.

It is something of a tradition for new justices to be assigned a case in which the court is unanimous for their first opinion, but it doesn’t always happen. Justice Neil Gorsuch and Justice Brett Kavanaugh, wrote unanimous first opinions. Sotomayor also got a unanimous opinion for her first assignment, but Justice Elena Kagan, was assigned a first opinion where the court divided 8-1

Because of the coronavirus pandemic, the justices are not currently announcing their decisions in the courtroom but only posting them online.

Barrett’s opinion Thursday was not the first writing the public has seen from her as a justice.

Last month, she wrote a paragraph-long concurring opinion in a case in which the justices told the state of California that it can’t bar indoor church services because of the coronavirus pandemic, but could maintain a ban on singing and chanting indoors.

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