Did Justice Barrett Flip in PennEast Pipeline?

Today’s New York Times features an extensive profile of Justice Amy Coney Barrett by Jodi Kantor. The article opens with a tidbit that I had not seen reported previously.

As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.

Soon after Justice Barrett arrived at the court she began surprising her colleagues. Chief Justice John G. Roberts Jr. assigned her to write a majority opinion — among her first — allowing the seizure of state property in a pipeline case, according to several people aware of the process. But she then changed her mind and took the opposite stance, a bold move that risked irritating the chief justice.

The case in question was PennEast Pipeline Co. v. New Jersey. At the time I speculated that Justice Barrett may have lost the majority in that case. What the NYT reports, however, is that she did not lose the majority so much as she abandoned it by changing her position (and, in the process, getting it right).

PennEast was an interesting case in many ways. Among other things, it produced an interesting lineup. The Chief wrote for the Court, joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. The dissenters were Justices Barrett, Thomas, Kagan, and Gorsuch, and in my view they had the better of the argument, doctrinally and prudentially. (Indeed, if all you told me about a case was this lineup, I’d be inclined to assume the dissenters got it right.)

For those who forget, Justice Barrett’s dissent began:

A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity. Recognizing that barrier, the Court insists that eminent domain is a special case. New Jersey has no sovereign immunity to assert, it says, because the States surrendered to private condemnation suits in the plan of the Convention. This argument has no textual, structural, or historical support. Because there is no reason to treat private condemnation suits differently from any other cause of action created pursuant to the Commerce Clause, I respectfully dissent.

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