Justice Amy Coney Barrett Delivers First Opinion

On Thursday, Justice Amy Coney Barrett delivered her first opinion in the Supreme Court. In a 7-2 decision, Barrett delivered the ruling against an environmental organization that had sued the Obama administration, seeking the release of documents regarding the effect of a certain process of the Environmental Protection Agency on the environment and endangered species.

The case was the first one Justice Barrett heard after her nomination and confirmation late last year. Four months later, her first opinion was released over the span of 11 pages. The decision was made 7-2, with Justice Stephen Breyer filing a dissenting opinion, joined by Justice Sonia Sotomayor.

According to ABC News, it has been a tradition in the past for recently confirmed justices to be given cases in which there is a unanimous court. However, that did not happen in this scenario. In the past, “Both of Trump’s other nominees, Justice Neil Gorsuch and Justice Brett Kavanaugh, wrote unanimous first opinions. Sotomayor also got a unanimous opinion for her first assignment, but President Barack Obama’s other nominee, Justice Elena Kagan, was assigned a first opinion where the court divided 8-1.”

Barrett’s specific case involved the Sierra Club, which is an environmental group that sought to retrieve government materials “involving certain structures used to cool industrial equipment and their potential harm to endangered wildlife,” according to ABC News. The Sierra Club had referenced the Freedom of Information Act as the reason they should be given access to the records. However, Barrett’s written opinion clarifies that while the FOIA “requires that federal agencies make records available to the public upon request,” they are not required to do so if “those records fall within one of nine exemptions.”

One of those exemptions “incorporates the privileges available to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege.” Barrett writes that this particular case revolves around “the deliberative process privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts.” The opening paragraph concludes that the Court “must decide whether the privilege protects in-house drafts that proved to be the agencies’ last word about a proposal’s potential threat to endangered species. We hold that it does.”

The opinion goes on to explain why the Freedom of Information Act does not apply to the case at hand. It reads, “The deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view—not a final decision—about the likely effect of the EPA’s proposed rule on endangered species.”

Essentially, Barrett’s decision classifies the documents requested by the Sierra Club as part of an early process of deliberation, and not final records. Therefore, the environmental group was not granted access to them.

Barrett does state, however, that organizations will not be able to get away with hiding final decisions within early documents. The opinion reads, “If the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply. The Services, however, did not engage in such a charade here.”

Originally, the California-based U.S. Court of Appeals for the 9th Circuit ruled that the requested documents could be given to the Sierra Club, but the Supreme Court reversed that decision on Thursday.

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