Justice Barrett Participates in Her First Supreme Court Arguments

November 2, 2020 by Dan McCue
Chief Justice John G. Roberts (R) administers the Judicial Oath to U.S. Supreme Court Associate Justice Amy Coney Barrett as her husband Jesse Barrett holds the Bible in the East Conference Room, Supreme Court Building on Oct. 27, 2020 in Washington, DC. (Fred Schilling/Collection of the Supreme Court of the United States via Getty Images/TNS)

WASHINGTON — Justice Amy Coney Barrett joined her new colleagues on the Supreme Court Monday, participating in oral arguments for the first time.

The cases on the docket Monday were no head-turners. The first, U.S. Fish and Wildlife Service v. Sierra Club Inc., concerned public disclosure of agency documents during the earliest phases of crafting a new regulation.

The regulation at issue in the case involved the use of cooling structures by facilities such as power and manufacturing plants.

While it was never likely to set off bells and whistles in or outside the court, after today it will be noteworthy for the fact it inspired Justice Barrett to ask her first question on the court.

Following up on a series of questions posed by Justice Brett Kavanaugh, Barrett asked attorneys for the Sierra Club what factors they think a court should consider in determining whether a draft agency document should be subject to the Freedom of Information Act.

To frame her question, she offered the hypothetical situation of a government official stamping “draft” on a document in a bid to try to avoid disclosing it.

The new justice wanted to know what other factors courts should consider to determine whether the document should be disclosed anyway.

The second case on the docket, Salinas v. United States Railroad Retirement Board, focused on whether the Railroad Retirement Board’s refusal to reconsider a prior benefits determination is a “final decision” subject to judicial review.

Such seemingly mundane but important cases are the norm rather than the exception of what comes before the high court, but Barrett won’t have to wait long before she gets to hear something juicier.

On Wednesday, the morning after the election, the justices will hear Fulton v. City of Philadelphia, Pa., a case in which they’ll consider whether religious organizations should be exempt from government policies that bar discrimination on the basis of sexual orientation.

And next week, on Nov. 10, the court is scheduled to hear arguments on whether the Affordable Care Act is constitutional, in whole or in part.

Democrats who opposed Barrett’s confirmation, claimed that the Obama-era health law would be in jeopardy if Barrett joined the court. President Donald Trump is urging the court to overturn it.

During her confirmation hearing, Barrett, when asked about her position on the constitutional issues involving the ACA, stated she could not comment on an upcoming case.

That inspired Sen. Dick Durbin, D-Ill., to ask whether her previous writings, which were critical of the health care law, would affect her decision in the upcoming case.

“I think that your concern is that because I critiqued the statutory reasoning that I’m hostile to the ACA, and that because I’m hostile to the ACA, I would decide a case a particular way,” Barrett said.

“I’m not hostile to the ACA. I’m not hostile to any statute that you pass,” she said.

Barrett’s debut came as the justices continue to hear cases by phone because of the ongoing coronavirus pandemic.

But the lack of proximity didn’t stop Chief Justice John Roberts from warmly welcoming the new justice to the court.

“Before we commence the business of the court this morning it gives me great pleasure on behalf of myself and my colleagues to welcome Justice Barrett to the court,” he said, wishing her “a long and happy career in our common calling.”

Though she was confirmed a week ago today in a 52-48 Senate vote, Barrett did not participate in the justice’s private conference Friday, so that she could prepare for this week’s oral arguments.

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