In Amy Coney Barrett, Trump Picks an Exacting Scholar for Supreme Court
John G. Malcolm / Thomas Jipping /
President Donald Trump on Saturday evening nominated U.S. Circuit Judge Amy Coney Barrett for the vacancy created by the death of Supreme Court Justice Ruth Bader Ginsburg.
Trump appointed Barrett to the U.S. Court of Appeals for the 7th Circuit in October 2017 and, less than a month later, her name was added to those Trump said he would consider for the Supreme Court.
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Senate Democrats have vowed to do everything they can to block Barrett’s nomination, but that will be hard given her impressive record, fidelity to the Constitution, and respect for the rule of law.
Now that Trump has nominated Barrett, 48, Americans want to know who she is and what kind of Supreme Court justice she will be.
Her husband, Jesse M. Barrett, is an attorney and former federal prosecutor. They live in South Bend, Indiana, with their seven children, five biological (the youngest with special needs) and two adopted from Haiti.
Barrett herself was the oldest of seven and grew up in New Orleans, Louisiana. She received a bachelor’s degree, magna cum laude, in English literature from Rhodes College, where she was a member of Phi Beta Kappa.
Barrett attended Notre Dame Law School on a full-tuition scholarship as a Kiley fellow. She graduated summa cum laude from Notre Dame and was first in her 1997 class, receiving the Hoynes Prize. She was executive editor of the Notre Dame Law Review and received awards for the best exam in 10 of her courses.
Barrett, a Roman Catholic, also belongs to People of Praise, a nondenominational, faith-based group that grew out of the Pentecostal revival of the early 20th century. Members provide each other with practical and spiritual advice, and have opened eight Blue Ribbon schools and undertaken missionary work throughout the country.
Barrett clerked for two prominent federal judges, Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit (1997-98) and Supreme Court Justice Antonin Scalia (1998-99).
Back to Notre Dame
After a brief time in private practice, during which she was on the team representing George W. Bush in Bush v. Gore following the 2000 presidential election, and teaching law at George Washington University and the University of Virginia, Barrett headed in 2002 to her alma mater, Notre Dame Law School, where she would teach for the next 15 years.
Barrett became a full professor in 2010; three graduating classes voted her “Distinguished Professor of the Year.”
Barrett’s extensive scholarship focuses on areas of particular relevance to appellate judges, such as constitutional law, the federal courts, and statutory interpretation. In particular, her work on originalism and judicial precedent earned her a national reputation. This scholarship reflects her understanding of the defined, limited role that judges play in our system of government.
In a 2003 article in the University of Colorado Law Review, Barrett examined the relationship between precedent and due process, arguing that a rigid or inflexible adherence to precedent actually might deprive litigants of a full opportunity to present the merits of their claims. The legal doctrine of stare decisis, or adherence to precedent, Barrett wrote, must be “flexible in fact, not just in theory.”
In a 2010 article in Boston University Law Review, Barrett explored textualism, stating:
The bedrock principle of textualism, and the basis on which it has distinguished itself from other interpretive approaches, is its insistence that federal courts cannot contradict the plain language of a statute, whether in the service of legislative intention or in the exercise of a judicial power to render the law more just. … There is no justification for departing from the plain text of a constitutional statute.
In a 2013 article in Texas Law Review, Barrett examined how the principle that the Supreme Court should follow its own past decisions is a “weak presumption” in cases that interpret the Constitution.
She endorsed the view that “a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she clearly thinks is in conflict with it.”
In the article, she explained that “public response to controversial cases like Roe [v. Wade] reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.”
Joining the 7th Circuit
When Trump nominated her to the 7th Circuit, every Supreme Court clerk from the year when Barrett clerked there wrote a letter to the Senate Judiciary Committee supporting her nomination.
One signatory, Harvard law professor Noah Feldman, a noted liberal scholar, said this about Barrett in 2018 when she was under consideration for the Supreme Court seat that ultimately went to Brett Kavanaugh:
There were just under 40 Supreme Court clerks in October Term 1998, none exactly a slouch. She was one of the two best lawyers of the 40—and arguably the single best. Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities is going to lose. Badly. She has only eight months’ experience on the court of appeals after a career as a law professor. But she was legally prepared enough to go on the court 20 years ago.
At Barrett’s confirmation hearing for the seat on the 7th Circuit, Senate Democrats subjected her to harsh and inappropriate questions.
Although Article VI, clause 3 of the Constitution provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” Sen. Dick Durbin, D-Ill., asked Barrett: “Do you consider yourself an orthodox Catholic?”
And then Sen. Dianne Feinstein, D-Calif., proclaimed: “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”
Democrats also focused extensively on an article in Marquette Law Review that Barrett co-authored with Notre Dame law professor John H. Garvey. They examined the “cultural collision” that can occur when a Catholic judge handles a death penalty case and whether her church’s teaching can be at odds with her judicial responsibility.
Barrett and Garvey concluded: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”
The solution to an irreconcilable conflict, they wrote, is “the recusal of judges whose convictions keep them from doing their job.”
Barrett’s critics accused her of believing the opposite of what she wrote in this article, continuing to claim that she “thinks judges should put their religion ahead of the law.” By creating this false impression, these critics could suggest that Barrett would rely on her Catholic faith to decide cases on other divisive issues such as abortion.
In response to this onslaught during her confirmation hearing, Barrett exhibited grace under fire, stating what she would do if she faced a conflict between her religious faith and judicial duty.
“I would recuse,” she testified. “I would never impose my own personal convictions upon the law.”
It is “never appropriate,” she added, “for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”
What Her Record Shows
As a judge, Barrett’s record reflects what she actually wrote in that article and what she actually said in her Senate testimony.
In Lee v. Watson, for example, Barrett joined an opinion by Chief Judge Diane Sykes vacating an injunction that blocked the execution of Daniel Lewis Lee, a member of the Aryan People’s Republic, convicted of a 1996 triple murder. The opinion is a straightforward application of the Federal Death Penalty Act and criticized the district court judge’s improper “maneuver” of creating her own theory of the case to reach her result. Barrett joined a similar opinion, also written by Sykes, in Peterson v. Barr.
Barrett’s judicial docket has included some hot-button issues. In Kanter v. Barr, Kanter pled guilty to mail fraud, a felony that, under both federal and state law, resulted in a lifetime ban on firearm possession. Kanter sued, arguing that the categorical ban violated the Second Amendment when applied to nonviolent felons like him. The district court rejected his challenge and, by a 2-1 vote, the 7th Circuit affirmed.
The lone dissenter was Barrett, arguing that “[a]bsent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”
In Barrett’s view, the Constitution grants the right to keep and bear arms to all, while giving Congress the limited authority to take that right away from some. She rejected the alternative view that, in effect, Congress gets to decide who has the right to keep and bear arms and who does not. This may seem like a fine distinction to some, but it shows that Barrett gives fundamental constitutional rights the importance they deserve.
Barrett has joined, but has not written, opinions in abortion-related cases. Planned Parenthood v. Commissioner was a challenge to Indiana’s law prohibiting abortion for the purpose of sex selection or on the basis of disability and regulating disposal of fetal remains. A three-judge panel of the 7th Circuit affirmed the district court’s decision that the prohibition was unconstitutional.
After the full 7th Circuit declined to rehear the case, Judge Frank Easterbrook wrote a dissenting opinion that was joined by Barrett. Although Indiana had not appealed the decision striking down the abortion ban, Easterbrook noted that Supreme Court precedents such as Roe v. Wade or Planned Parenthood v. Casey did not address whether the right to abortion they established extends to abortion “designed to choose the sex, race, and other attributes of children … We ought not impute to the Justices decisions they have not made about problems they have not faced.”
Regarding the portion of the decision striking down the fetal-disposal regulations, Easterbrook noted that states may protect the welfare of animals, including regulating the disposal of their remains, such that “[t]he panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” If animal welfare statutes are rational, he wrote, “[i]sn’t that equally true of a statute about fetal remains?”
Planned Parenthood v. Box involved a challenge to an Indiana law requiring minors to notify their parents before obtaining an abortion. A three-judge panel of the 7th Circuit found the statute unconstitutional before it ever had been implemented, and the full 7th Circuit declined to review that decision.
Barrett, with three colleagues, joined a one-paragraph opinion by Judge Michael Kanne, arguing that the full 7th Circuit should have tackled the issue of when federal courts may issue pre-enforcement injunctions against state laws. “Preventing a state statute from taking effect,” he wrote, “is a judicial act of extraordinary gravity in our federal structure.”
In Price v. City of Chicago, pro-life activists challenged a Chicago ordinance that prohibited communication within eight feet of persons in the vicinity of abortion clinics. The district court upheld the ordinance, relying on a Supreme Court decision that the First Amendment permitted a “nearly identical” Colorado law.
Barrett joined a unanimous 7th Circuit panel affirming that decision. The opinion observed that the Supreme Court’s decisions in this area are “hard to reconcile” and are “in tension” with each other. Although the panel stated that the biding precedent “is incompatible with current First Amendment doctrine,” the judges said that they were nonetheless bound by the decision, and that it was up to the Supreme Court to decide whether to overturn that precedent.
Objectively Applying the Law
Barrett’s opinions on the 7th Circuit demonstrate that she is a judge who pays close attention to the factual record in each case and takes seriously the limited role of a federal appellate court (see here, and here).
Her judicial method, for example, emphasizes an objective application of the law, rather than her own subjective feelings about a case. In Mathews v. REV Recreation Group, she wrote that “[w]e sympathize with the Mathews’ plight; they bought a lemon.” But because the plaintiffs had not shown that the manufacturer had failed to honor its warranty, which was the legal issue in the case, the appeals court affirmed the lower court’s judgment for the defendant.
Barrett also wrote the opinion in Doe v. Purdue University, in which a male college student challenged his suspension after he was found guilty of sexual violence. That one-year suspension resulted in his expulsion from the ROTC program and loss of his related scholarship. He sued the university, claiming its procedures resulting in the suspension violated his constitutional rights as well as federal anti-discrimination laws.
In an opinion by Barrett, the 7th Circuit reversed the lower court, which had dismissed the case. Barret’s opinion was not a decision on the merits of the student’s claims, but rather a decision on whether the lawsuit could proceed or should be thrown out before it really began. Barrett concluded: “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.”
The university, for example, refused to disclose the evidence on which it based its decision to suspend the student. This alone, Barrett wrote, is “sufficient to render the process fundamentally unfair.”
She noted that the student might have problems later proving his claims later, “and the factfinder may not buy the inferences that he’s selling.”
“But his claim should have made it past the pleading stage,” she concluded, “so we reverse the magistrate judge’s premature dismissal of it.”
In Cook County v. Wolf, the Illinois county and a nonprofit advocacy organization challenged the Trump administration’s rule implementing the “public charge” provision of the Immigration and Nationality Act. That provision allows denial of admission to an immigrant who is “likely at any time to become a public charge.”
In a 2-1 decision, a panel of the 7th Circuit affirmed a lower court order enjoining the administration from implementing the rule. Barrett dissented, arguing that the majority erred when it said that the term “public charge” referred very narrowly to those who were “primarily and permanently dependent on public assistance.”
Barrett looked at how the term was understood when it first appeared in federal statutes in the late 19th century, concluding that both state legislatures and Congress viewed the term more broadly as a lack of self-sufficiency. Barrett also looked at how courts and administrative agencies used the term in the 20th century, concluding that the 1996 amendments to the public charge provision also took a broader view.
As a result, Barrett concluded that the Trump administration’s rule, which is consistent with this view, is reasonable and therefore likely would be upheld on the merits. As such, an injunction was inappropriate. Those challenging the rule, she wrote, really are challenging the policy choice that it represents, and litigation “is not the vehicle for resolving policy disputes.”
Speaking Outside Court
Barrett has continued to address significant issues outside the courtroom that also help others to understand her judicial philosophy.
In a 2018 speech, she stated that, properly understood, originalism does not involve trying to “think your way into the minds of the Framers.” Rather, she said, it is a recognition that “The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today.”
Speaking days before the 2016 election about what impact the next president would have on the Supreme Court, Barrett declared
People should not look to the Supreme Court as a super Legislature. They should look at the Court as an institution that interprets our laws and protects the rule of law, but doesn’t try to impose policy preferences – that’s the job of Congress and the president.
Barrett’s record gives every indication that she would do just that, and would put the law above her personal views.
Again, although Senate Democrats have vowed to do everything in their power to try to block her nomination to the Supreme Court, it will be a hard case for them to make given Barrett’s impressive record, fidelity to the Constitution, and respect for the rule of law.
Amy Coney Barrett no doubt would be an outstanding addition to the Supreme Court.