Conservatives expected Amy Coney Barrett to be a reliable vote against big government. Sometimes she is. In Loper Bright Enterprises v. Raimondo (2024), she helped kill the Chevron deference doctrine, stripping federal agencies of their ability to stretch vague laws into sweeping regulations. A good sign. But one case doesn’t make a judicial philosophy. She has also shown a deep respect for precedent, which could be a problem if Trump’s budget cuts or bureaucratic purges end up in front of her.
Barrett all but waved a caution flag in Fulton v. City of Philadelphia (2021). Conservatives were itching to scrap decades of bad precedent on religious liberty, but Barrett wasn’t so sure. The case centered on Philadelphia barring a Catholic foster agency from placing children because it refused to certify same-sex couples. The agency argued this was blatant religious discrimination, and conservatives saw the perfect opportunity to overturn Employment Division v. Smith (1990), a ruling that gutted religious freedom protections by allowing neutral, generally applicable laws to override First Amendment claims.
Barrett pumped the brakes. In her concurrence, she fretted over whether overturning past rulings was really necessary, saying she was "skeptical about swapping one murky test for another." Instead of delivering the sweeping victory religious liberty advocates hoped for, the Court issued a narrow ruling that fixed the specific problem but left Smith standing. That’s not the voice of a justice ready to clean house. That’s the voice of a bureaucrat in a robe, worried about making too many waves. Not good.
The same pattern played out when the Court punted on Trump’s 2020 election challenges. Barrett, Kavanaugh, and Roberts took one look at the firestorm surrounding the election and ran for the hills. Barrett’s reasoning? The Court should not "needlessly throw itself into" the political battle. As if refusing to take up a case about potential election irregularities in the most contentious election in modern history wasn’t a political decision in itself. That kind of logic should make Trump nervous. If Democrats challenge his power to gut agencies, fire career bureaucrats, or slash a trillion from the federal budget, Barrett might just dust off that same excuse—too messy, too controversial, let’s sit this one out.
Kavanaugh isn’t any better. He had a chance to take a stand in 2020, but instead, he lined up with Barrett and Roberts to keep the Court out of it. That’s been his pattern. While he talks a big game about constitutional limits on government, when the moment comes to actually shake up the system, he shrinks back. And Roberts? He’s spent his entire tenure treating the Supreme Court like a fragile institution that must be preserved at all costs—even if that means siding with liberals to keep Washington’s power structure intact. If Trump’s plan to dismantle the bureaucracy makes it to the highest court, Roberts will be the first to clutch his pearls and warn against “upsetting stability.” The real question is whether Barrett and Kavanaugh will follow him down that road or finally grow a spine.
Trump’s proposed use of Schedule F to strip job protections from thousands of bureaucrats will almost certainly land in front of this Court. The Civil Service Reform Act of 1978 gives the president authority over certain high-ranking positions, but it has never been used on the scale Trump is proposing. Barrett could decide that the law, as written, does not support such a sweeping change. On Wednesday, a Bill Clinton-appointed federal judge in Massachusetts, George O’Toole, ruled that the administration can move forward with voluntary buyouts for federal workers, rejecting an attempt by labor unions to block the plan. His reasoning? The unions had no legal standing to challenge the program because they were not directly affected by it. If Trump’s opponents are hoping to weaponize the courts, they just took a hit.
The question is whether Barrett and the Supreme Court will follow the same logic. O’Toole’s decision signals that at least some judges are willing to let Trump cut Washington down to size without interference. But he is a lower court judge. The unions will keep pushing, appealing, looking for a friendlier venue. The fight isn’t over.
Another battle is brewing over Trump’s push to weaken or dismantle the Consumer Financial Protection Bureau. Harvard Law professor Hal Scott has already argued that the CFPB is operating illegally because it is funded by the Federal Reserve, which has been running losses. If Barrett agrees that Congress never properly appropriated money for the agency, she could vote to rein it in. If she instead focuses on the broader implications of suddenly defunding an entire agency, she might hesitate.
None of this means Barrett is a lost cause. Her vote in West Virginia v. EPA (2022) signaled that she is willing to curtail federal power when the law demands it. But that was a case about agencies exceeding their statutory authority. Trump’s budget fights will test something else: whether a president has the power to take a sledgehammer to Washington itself.
The left already has its strategy. Tie up Trump’s cuts in endless litigation, force the Court to rule on them, and hope that Barrett or Kavanaugh flinch. Barrett has made it clear she does not want the Court seen as a political weapon. If she lets that concern outweigh the actual law, she will give Washington exactly what it wants.
If this Court wants to prove it truly believes in limiting government power, it will have to do more than issue rulings against rogue regulators. It will have to stand firm when the president finally tries to cut Washington down to size. If Barrett, Kavanaugh, or Roberts give in to institutionalist instincts, Trump’s budget revolution will die in the courts before it ever reaches the agencies.
The time to pass an omnibus bill codifying Trump’s changes is now—before the unions flood the courts and while public support is still high. Give SCOTUS less to squish. Stiffen the spines of any potential SCOTUS jellyfish who may be waiting to sting our fledgling Shiba Inu.
