The SCOTUS Beat -- Divided by Principle: How Justices Barrett and Jackson are Shaping the Future of Constitutional Law

Two justices, two distinct philosophies—when Barrett and Jackson take the bench, their questions don’t just seek answers; they help shape the very future of constitutional law.

Supreme Court oral arguments are more than just legal debates—they’re a high-stakes battleground where justices reveal their philosophies, test the strength of arguments, and sometimes, subtly try to persuade their colleagues. Among the most compelling contrasts on the bench today are Justices Amy Coney Barrett and Ketanji Brown Jackson, two sharp legal minds who approach cases from strikingly different angles. Barrett, ever the methodical conservative, zeroes in on legal thresholds, intent, and the fine print of doctrine—her questions sharp, strategic, and focused on keeping legal claims tightly contained. Jackson, in contrast, takes a big-picture approach, weaving history, civil rights, and real-world stakes into her questioning. She challenges assumptions, pressing lawyers to grapple with broader systemic consequences and the lived experiences behind the law. While Barrett drills down on precedent and precision, Jackson expands the lens with analogies and probing hypotheticals. Their exchanges in oral arguments offer more than just legal analysis—they reveal two distinct visions for how the law should function and who it should protect. Whether shaping debate through meticulous legal reasoning or sweeping historical framing, both justices bring intellectual firepower that shapes the Court’s direction in ways both subtle and profound.

One clear distinction is in their total engagement at oral argument. The two graphs below track the Justices’ word counts across all argument in the 2023/2024 Term and those already completed in this 2024/2025 Term.

These show how Justice Jackson dominates Justice Barrett (and all of the other justices) in total speech. It does not convey the direction and depth of their questions and comments though which are at the heart of this article. The remainder of this piece proceeds by breaking down and comparing their argument styles across eight oral arguments, four from the 2023/2024 Term and four from the 2024/2025 Term.

2023/2024 Term

* Tools for analysis included Tableau and R Toots (QDap, TM, and tidytext) along with Jake Truscott’s parsed transcripts.

Acheson Hotels:

This case examined whether an ADA “tester” has Article III standing to sue a hotel for failing to provide required accessibility information on its website, even if the tester has no intention of staying at the hotel.

Barrett: 756

Justice Barrett's questions explored the prudential and strategic aspects of mootness, standing for disability-related discrimination claims, and the relevance of a plaintiff's intent and need for accommodations. Her questions sought clarity on the threshold for standing and whether a plaintiff can claim an Article III injury without intent to use the service, pushing for a better understanding of how to define a valid injury in ADA cases. By emphasizing strategic behavior and focusing on plaintiffs' intent, she encouraged a narrower view of standing, potentially influencing others to consider whether plaintiffs who don't intend to use services should still have standing based on their motivations. Her emphasis on intentionality in using services and the connection to discriminatory harm suggested she leans toward a more restrictive view of standing, prioritizing those plaintiffs whose injury is directly linked to their need for accommodations.

Jackson: 1543

Justice Jackson critically examined issues of mootness, standing, and the distinction between different types of legal testers in the context of a case. She challenged the necessity of additional judicial work when both parties agree a case is moot and probed the implications of the mootness doctrine, particularly the Munsingwear remedy. She also delved into the concept of tester standing, drawing historical comparisons to civil rights-era lunch counter sit-ins to explore whether an individual can claim discrimination without directly seeking a service. Her questions probed the logical reasoning behind the mootness argument and whether established legal principles, such as Munsingwear, should apply, indicating an effort to clarify procedural consistency. By framing mootness as the ordinary course of action and questioning why the Court should take additional steps, she subtly challenged the necessity of further judicial intervention, shaping how others might view the case’s resolution. Her comparisons to historical civil rights testing and hypothetical analogies suggested skepticism about distinguishing Laufer’s standing from past tester cases, implying a potential inclination toward recognizing her claim as legitimate.

Comparison:

Justice Barrett's approach was more focused on the direct and intentional aspects of standing, questioning whether a plaintiff's injury is tied to their intent to use a service. She also considers strategic behavior in shaping legal outcomes. In contrast, Justice Jackson emphasizes broader systemic issues, such as discrimination and accessibility, and is more open to recognizing harm beyond direct intent, supporting a wider interpretation of standing, particularly in ADA cases.

Votes: Both to vacate as moot

Grants Pass v. Johnson:

This case examined whether a city's enforcement of anti-camping and anti-sleeping ordinances against involuntarily homeless individuals, when no adequate shelter is available, violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Barrett: 1492

Justice Barrett’s questions focused on defining the scope of the ordinance in question, its implications for criminalizing homelessness-related conduct, and the constitutional boundaries of punishing involuntary actions tied to homelessness under the Eighth Amendment. She also explored practical enforcement challenges, the distinction between status and conduct, and how municipalities define their responsibilities in addressing homelessness. Her inquiries aimed to clarify the scope of the law, questioning whether it criminalized basic survival activities like sleeping with a blanket and how it intersected with broader constitutional principles, particularly regarding status-based punishment under Robinson v. California. By pressing on the difficulty of drawing legal lines between conduct and status, Barrett framed the issue in a way that emphasized the potential enforcement challenges and policy implications, possibly steering the discussion toward a narrower interpretation of Eighth Amendment protections. Her focus on the pre-enforcement challenge, the necessity of individualized determinations, and the practical limits of law enforcement suggests she may be skeptical of broad constitutional protections against municipal regulations on homelessness but open to specific challenges where enforcement disproportionately punishes status.

Jackson: 2072 words

Justice Jackson’s questions primarily focused on the distinction between conduct and status, and the implications of that distinction for the application of the Eighth Amendment. She sought to clarify the nature of this distinction by asking why certain actions, such as sleeping or eating in public, should be considered conduct and whether these acts could still be deemed criminal when performed by people without other options. Her questions, particularly the hypothetical about eating in public, encouraged others to reconsider how laws that penalize the homeless might disproportionately impact those without shelter, subtly guiding them to recognize the importance of treating homelessness as a status rather than criminal conduct. Overall, her line of questioning suggested a focus on the fairness and constitutionality of punishing people for engaging in universally human activities, like sleeping or eating, when they are unable to do so privately, which may point toward a more protective stance for those experiencing homelessness and against criminalizing basic survival actions.

Comparison

Justice Barrett and Justice Jackson approach the criminalization of homelessness from different angles. Barrett focused on the ordinance’s scope, the constitutional limits of punishing involuntary actions, and enforcement challenges, favoring a narrower Eighth Amendment interpretation and individualized enforcement. Jackson, in contrast, emphasized the fairness of penalizing basic survival acts like sleeping or eating in public, arguing for recognizing homelessness as a status rather than conduct and opposing the criminalization of essential human activities.

Votes: Barrett for Grants Pass, Jackson for Johnson

Trump v. US

The case revolves around whether a former president (Donald Trump) is immune from criminal prosecution for actions taken during his presidency, with Trump arguing that he cannot be prosecuted unless first impeached and convicted, and the court addressing whether such immunity applies to alleged conduct related to the January 6, 2021, Capitol attack.

Barrett: 1520 words

Justice Barrett's line of questioning delved into distinguishing between official and private actions of a president. She posed scenarios to clarify which actions could be deemed private, such as collaborating with private attorneys to disseminate false election claims or submitting fraudulent elector slates. By seeking agreement from counsel that these were private acts, Barrett highlighted the delineation between official duties and personal conduct. This approach suggests she was probing the boundaries of presidential immunity, potentially to fortify the argument that immunity should not extend to actions outside official capacities. Her method of questioning indicates a critical examination of the scope of immunity, possibly signaling a stance that favors limiting immunity to strictly official acts.

Jackson: 3088

Justice Jackson's questioning aimed to probe the boundaries of absolute immunity for the president, focusing on how official and personal acts should be distinguished. She expressed skepticism about the idea that private actions by the president could be protected under absolute immunity, even if the doctrine were applied to official acts. Her questions challenged the assumption that the president should be exempt from criminal liability when performing official duties, questioning whether this would embolden future presidents to act without consequence. By repeatedly probing the rationale behind immunity and the clear statement rule, Justice Jackson sought clarity on whether the president should be held to the same legal standards as others in positions of power, reflecting her concern about potential misuse of presidential power if immunity were granted too broadly.

Comparison

Justices Barrett and Jackson approached the issue of presidential immunity from distinct angles. Barrett focused on distinguishing between official and private acts, emphasizing that actions such as collaborating with private attorneys to spread false election claims were private and should not fall under presidential immunity. Her questioning suggested a preference for limiting immunity to strictly official conduct, potentially advocating against immunity for actions related to the January 6 Capitol attack. On the other hand, Jackson expressed skepticism about granting immunity to private acts, questioning whether such immunity could embolden future presidents to act without consequences. She repeatedly challenged the rationale behind immunity, concerned that its broad application could lead to unchecked misuse of presidential power, suggesting a more cautious stance toward granting immunity in this case.

Votes: Barrett for Trump, Jackson for United States

FDA v. Alliance for Hippocratic Medicine

This case involves a challenge to the FDA’s approval and regulation of mifepristone, with plaintiffs arguing that the FDA’s 2016 and 2021 actions regarding its distribution were improper, leading to legal questions about standing, the legality of the FDA's decisions, and the appropriateness of granting preliminary relief.

Justice Barrett: 929 words

Justice Barrett’s questioning primarily sought to clarify legal nuances surrounding the conscience protections for healthcare workers, the standing of associations in legal challenges, and the implications of regulations related to abortion and its associated medical procedures. Her questions aimed to gather specific information about whether federal conscience protections could apply to doctors in healthcare deserts and how the consequences of certain actions, such as performing a D&C after an abortion, should be understood in relation to the definition of an "adverse event." She also pressed counsel to distinguish between different types of harms and resources diverted by organizations in a way that might affect their standing in litigation. Barrett's questions sought to guide others' perspectives by emphasizing practical concerns, such as the impact of procedural changes on doctors' ability to properly assess pregnancies and the implications of conscience objections, subtly encouraging a more restrained interpretation of legal protections and standing. Her line of questioning suggests that she is interested in ensuring that legal interpretations are grounded in practical considerations and the realities of medical practice, potentially favoring a more structured and cautious approach to extending protections.

Justice Jackson: 1118 words

Justice Jackson’s questions focused on the mismatch between the alleged injuries of the Respondents and the remedies they sought, while also probing broader concerns about the role of courts in evaluating scientific and medical expertise. She asked whether the remedy sought by the Respondents—an order preventing access to a drug for everyone—was disproportionate to the alleged conscience injury, and whether exemption from participating in the procedure would be sufficient. Jackson also inquired about the potential impact of a ruling on the statute of limitations and how courts should approach medical expertise when evaluating agency decisions, especially regarding the safety and efficacy of drugs. Through these questions, Jackson sought to challenge the scope of the remedy and clarify whether the Respondents’ claimed injuries could be addressed more narrowly without impacting others, indicating a cautious approach to overbroad remedies. She also appeared skeptical of the necessity for courts to second-guess medical agencies and seemed inclined toward respecting the FDA’s expertise in such matters. Jackson’s questions suggest a practical perspective, emphasizing judicial restraint in matters requiring specialized scientific judgment while remaining concerned about the scope and appropriateness of legal remedies.

Comparison:

Justice Barrett and Justice Jackson both examined the scope and appropriateness of the legal remedies sought by the Respondents but approached the issue from different angles. Justice Barrett focused on the practical implications of the conscience objections and questioned whether the Respondents' requests for a broad remedy—prohibiting access to a drug entirely—were excessive given the availability of narrower remedies, like exemptions for individual doctors. She also showed concern for the consistency and clarity of federal protections for conscience objections. In contrast, Justice Jackson emphasized the disconnect between the alleged injury and the remedy sought, probing whether the injury could be resolved by more targeted actions, like individual exemptions, rather than a sweeping restriction on access to medication. She also expressed concern about judicial overreach in second-guessing expert agencies like the FDA and suggested that courts should be cautious when evaluating medical expertise. Both justices raised concerns about proportionality, but Jackson’s approach leaned more toward deferring to the specialized knowledge of agencies, while Barrett’s questions sought to clarify the limits of judicial intervention in balancing competing interests.

Votes: Both for lack of standing

2024/2025 Term

Free Speech v. Paxton

The case examines whether Texas's H.B. 1181, which mandates age verification and health warnings for websites with over one-third harmful content to minors, is subject to "rational basis" or "strict scrutiny" review in light of First Amendment protections and Section 230 of the Communications Decency Act.

Barrett: 1154 words

In the case, Justice Barrett explored the complexities of applying First Amendment protections to age-verification laws in the context of the internet versus brick-and-mortar settings. She questioned whether the privacy concerns surrounding online content are more burdensome than those in physical spaces, suggesting that the digital age presents unique challenges in terms of content filtering and accessibility. Barrett also probed whether age-verification laws, which protect minors while still allowing adults to access content, could be subject to a lower level of scrutiny than strict scrutiny, as they do not prohibit content outright but impose a burden on access. Her inquiry into whether the state's interest in protecting minors could justify a less demanding standard reflects her caution about diluting strict scrutiny. Overall, Barrett’s questioning points to a nuanced approach that balances the state’s compelling interest in safeguarding minors with the need to preserve robust First Amendment protections, indicating a preference for flexibility without completely relaxing traditional scrutiny standards.

Jackson: 2080 Words

Justice Jackson's questions primarily focused on the consistency of the case with past decisions, particularly Reno and Ginsberg, and the level of scrutiny to apply to age-verification laws. She sought clarity on how the petitioner's standard for applying strict scrutiny aligned with past precedents, questioning whether such laws effectively suppress adult speech and whether the burden on adults was disproportionate given the state's interest in protecting minors. Her inquiry into the preliminary injunction and the likelihood of success aimed to steer the conversation toward evaluating the correct legal standard rather than addressing the merits of the case. Jackson's repeated references to Ginsberg and her focus on the burden imposed on adults underlined her concern for ensuring that any age-verification law does not unnecessarily infringe on First Amendment rights while still protecting minors, which could indicate a cautious approach in balancing these interests. Through her probing questions, she seemed to push for an understanding that strict scrutiny, not rational basis, should guide the analysis in light of the potential for adult speech restrictions, reflecting her possible inclination to protect adult rights against overly burdensome age verification.

Comparison:

In this case, Justice Jackson and Justice Barrett adopt different approaches to balancing state interests and constitutional rights. Justice Jackson focuses on the need for strict scrutiny, concerned with the potential overreach of age-verification laws that could infringe on adult First Amendment rights, emphasizing that any burdens imposed on adults should be necessary and narrowly tailored. In contrast, Justice Barrett's approach is more grounded in legal precedents, such as Reno and Ginsberg, where she seems more inclined to apply rational basis review and supports the idea that the state's interest in protecting minors may justify some restrictions, as long as they are consistent with established legal standards. Jackson's approach leans towards protecting adult freedoms from excessive state interference, while Barrett is more willing to accept that the state's interests may justify regulation, provided it adheres to legal frameworks.

No decision yet

United States v. Skrmetti

The case examines whether Tennessee's law restricting certain medical treatments for transgender minors, based on their sex, violates the Equal Protection Clause of the 14th Amendment.

Barrett: 1338 words

Justice Barrett’s questions explored the nature of discrimination in the case, challenging whether the law’s equal application to both boys and girls could still constitute intentional discrimination, and whether the lack of a history of de jure discrimination against transgender individuals weakened the argument for classifying them as a suspect class. She also raised the possibility of future medical treatments targeting transgender minors and questioned how this could impact legal arguments. Her questions suggest a nuanced approach to whether transgender status should be treated as a suspect class.

Jackson: 2492 words

Justice Jackson's questions focus on the characterization of a law, particularly whether it draws a line based on sex or age, and whether this classification requires heightened scrutiny under equal protection principles. She questions the scope of classification in the statute, asking whether it can be both sex-based and age-based simultaneously, highlighting her view of the importance of distinguishing between the biological sex of individuals and their purposes in accessing medication. Her inquiries aim to clarify the law’s structure, urging a closer examination of its effects on different groups. These questions reveal her concern that the statute might indeed impose a sex-based classification that could trigger heightened scrutiny, while also drawing parallels to historical cases like Loving v. Virginia, where race-based classifications were challenged despite similar legislative justifications. The questions try to influence perspectives by encouraging careful scrutiny of the law’s impact and its constitutional implications, while also suggesting that the Court must not overlook the potential for discrimination inherent in the statute’s provisions. Jackson’s position appears to lean toward recognizing the statute’s discriminatory nature, potentially advocating for heightened scrutiny and caution in upholding such laws.

Comparison:

In this case, Justice Jackson's approach reflects a deep concern with the foundational principles of equal protection, particularly the scrutiny applied when laws draw distinctions based on suspect classifications, such as sex. She seeks to clarify the legal characterization of the law, emphasizing that both age and sex distinctions could be at play and arguing for heightened scrutiny if a sex-based line is indeed drawn. Justice Jackson's probing questions about the parallels with past cases, such as Loving v. Virginia, indicate her reluctance to allow legislative classifications to pass without rigorous constitutional scrutiny. In contrast, Justice Barrett’s approach seems more focused on the state's prerogative to set policy, questioning whether heightened scrutiny is necessary when the law draws distinctions for medical purposes or consistency with biological sex. Her questions focus on the practical implications and scientific justifications for the statute, suggesting a more deferential stance toward state decisions. Both justices raise fundamental questions about constitutional principles, but Justice Jackson's perspective leans more heavily on applying strict scrutiny, while Justice Barrett appears more open to legislative discretion.

No decision yet

Garland v. VanDerStok

The case addresses whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) exceeded its statutory authority under the Gun Control Act of 1968 when it issued a 2022 Final Rule redefining "frame or receiver" and "firearm" to regulate "ghost guns."

Barrett: 402 words

Justice Barrett's questions reflect a careful analysis of statutory language and intent, focusing on historical context and practical implications of gun regulations. She sought to clarify how specific legal definitions might apply to modern challenges (e.g., ghost guns and AR-15 conversions), suggesting she was trying to understand the evolving nature of gun ownership and regulation. Her questions aimed to gather perspectives on the potential unintended consequences of applying older laws to new technologies, indicating she may be cautious about overreaching interpretations that could criminalize lawful conduct. Through her inquiries, Barrett appeared to engage with both the legal history and practical realities of firearm regulations, suggesting a preference for nuanced, context-driven interpretations.

Jackson: 943 words

Justice Jackson's questions focused on the scope of the agency's authority to define firearms and the extent to which the Court should intervene in agency decisions about classification. She sought clarification on how the agency's interpretation of statutory terms should be evaluated, asking whether a mere disagreement with the agency's definition would constitute an overreach of authority. Her questions aimed to influence perspectives by framing the issue as one of statutory delegation, urging consideration of whether the agency had reasonably exercised its delegated power rather than whether the Court disagreed with the agency’s interpretation. Jackson’s approach suggests that she may favor a more deferential stance toward agency expertise and its ability to make determinations within the framework of congressional intent, emphasizing the need to respect the agency’s discretion in making determinations based on real-world factors.

Comparison

Justice Barrett and Justice Jackson approached the case from different perspectives, focusing on different aspects of the agency's authority and statutory interpretation. Justice Barrett’s questioning tended to scrutinize the practical implications of the agency’s definitions, particularly regarding the regulatory framework around firearms and the real-world application of these terms. She was concerned with how the agency's decisions may affect lawful owners and the potential unintended consequences of its interpretations. In contrast, Justice Jackson’s questions were more focused on the scope of the agency’s authority and whether the Court should intervene in the agency’s interpretation of statutory terms. She emphasized the importance of respecting the agency’s expertise in making determinations based on real-world factors and was concerned with ensuring that the Court does not overstep by substituting its own judgment for that of the agency. Jackson's approach suggested deference to the agency's role, while Barrett's questions hinted at a more cautious stance about potential overreach or unintended consequences of regulatory definitions.

No decision yet

Food and Drug Administration v. R.J. Reynolds Vapor Co.

This case questions whether a manufacturer can file a petition for review in a circuit where it neither resides nor has its principal place of business, based solely on the involvement of a seller of its products located within that circuit, in the context of the FDA’s denial of applications to market e-cigarettes.

Barrett: 553 words

Justice Barrett’s questions primarily focused on the prudential considerations of addressing venue and joinder issues, as well as the interpretation of terms like “adversely affected” and “aggrieved” within the Administrative Procedure Act (APA) and broader legal contexts. She sought to understand the risks of prematurely deciding the venue issue without sufficient lower court development and highlighted the potential for broader repercussions beyond the specific case. Her inquiries also delved into the specialized meanings of terms like “adversely affected” in administrative law, emphasizing that such terms should carry a consistent, capacious interpretation unless the statute at issue expressly overcomes it. Through her questions, she encouraged a cautious, reasoned approach, reflecting a preference for judicial restraint and careful consideration of the broader legal implications of any ruling, especially when key issues remain underdeveloped in lower courts.

Jackson: 1425 words

Justice Jackson’s questions in this case explored the nuances of the retailer’s interest in pre-market versus post-market product approval and the legal framework for suing under the statute. She sought to clarify the distinct nature of a retailer’s role before and after a product reaches the market, asking whether retailers would truly be agnostic to products in development or if their interest only materialized when a product was on store shelves. She also questioned the interpretation of the term "adversely affected" by raising the example of interest groups supporting flavored cigarettes, testing whether such groups could be considered harmed under the statute, even if their perspectives diverged from public health concerns. Finally, Justice Jackson delved into the statutory language, particularly regarding venue and enforcement, questioning whether Congress intended to create avenues for litigation that could undermine its purpose or protect defendants. Through these questions, Justice Jackson sought to probe the statutory intent, suggesting that Congress did not intend to allow retailers to sue over pre-market issues, and she appeared to emphasize a more restricted reading of the statute that focused on the interests of those directly harmed after products reached the market.

Comparison:

In this case, Justice Barrett and Justice Jackson approached the legal questions from different perspectives. Justice Barrett focused on the procedural aspects, questioning the prudential limits of statutory interpretation and the potential consequences of expanding standing to include parties who may not traditionally have had the right to sue. She emphasized caution in interpreting "adversely affected" to avoid unintended disruptions in legal practice. Justice Jackson, on the other hand, delved into the statutory text and the specific role of retailers, questioning their interest in pre-market versus post-market scenarios and whether Congress had intentionally limited their ability to challenge denials or withdrawals of products. While Barrett was concerned with broader implications and potential overreach, Jackson was more focused on understanding Congress's intent and the retailer's concrete interests in the legal framework.

No decision yet

Takeaway

Legal battles aren’t fought only in written opinions—the justices’ questions during oral arguments often reveal the deeper tensions shaping the Court’s decisions. In two examples above, Grants Pass and Trump v. United States, Justices Barrett and Jackson took sharply different approaches, exposing contrasting views on constitutional protections, government power, and individual rights.

In Grants Pass, where the Court considered whether punishing homeless individuals for sleeping outside violates the Eighth Amendment, Barrett’s questioning emphasized legal definitions and enforcement challenges. She explored the line between conduct and status, questioning how municipal regulations could be fairly applied without sweeping constitutional protections that might tie the hands of local governments. Jackson, however, framed the issue in terms of fundamental fairness, pressing the argument that punishing people for existing in public when they have no alternatives criminalizes status rather than conduct.

A similar divide emerged in Trump v. United States, where the justices debated whether a former president is immune from criminal prosecution for acts committed in office. Barrett focused on structural concerns—how federal and state powers intersect and whether existing legal frameworks provide sufficient guidance. Jackson, by contrast, honed in on accountability, questioning whether granting broad immunity would create a dangerous precedent allowing future presidents to evade legal consequences. These justices came out on different sides of both decisions which went down as ideologically split votes.

Across these cases, Barrett and Jackson’s lines of questioning reflect two distinct judicial philosophies—one prioritizing legal precision and institutional boundaries, the other focused on real-world impact and individual rights. As the Court weighs these decisions, their approaches could shape not only the outcomes of these cases but the broader trajectory of constitutional law.

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