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Posted Mon, September 21st, 2020 5:00 pmEmail Amy
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Profile of a potential nominee: Amy Coney Barrett
President Donald Trump announced on Saturday that he would nominate a woman to fill the vacancy left by the death of Justice Ruth Bader Ginsburg. According to news reports, Judge Amy Coney Barrett, a judge on the Chicago-based U.S. Court of Appeals for the 7th Circuit, is on the shortlist of candidates whom the president is considering.
Judge Amy Coney Barrett (University of Notre Dame)
This is not the first time that Barrett’s name has been mentioned in connection with a possible Supreme Court seat: Barrett was reportedly also on the shortlist to fill the vacancy created by the retirement of Justice Anthony Kennedy in 2018. Although that seat was eventually filled by now-Justice Brett Kavanaugh, Trump reportedly told advisers that he was “saving” Barrett in case Ginsburg stepped down during his presidency. Barrett became a hero to many religious conservatives after her 2017 confirmation hearing for her seat on the court of appeals, when Democrats on the Senate Judiciary Committee – most notably, Sen. Dianne Feinstein of California – grilled her on the role of her Catholic faith in judging.
Early life and career
The 48-year-old Barrett grew up in Metairie, Louisiana, a suburb of New Orleans, and attended St. Mary’s Dominican High School, a Catholic girls’ school in New Orleans. Barrett graduated magna cum laude from Rhodes College, a liberal arts college in Tennessee affiliated with the Presbyterian Church, in 1994. (Other high-profile alumni of the school include Abe Fortas, who served as a justice on the Supreme Court from 1965 to 1969, and Claudia Kennedy, the first woman to become a three-star general in the U.S. Army.) At Rhodes, she was a member of Phi Beta Kappa and was also recognized as the most outstanding English major and for having the best senior thesis.
After graduating from Rhodes, Barrett went to law school at Notre Dame on a full-tuition scholarship. She excelled there as well: She graduated summa cum laude in 1997, received awards for having the best exams in 10 of her courses and served as executive editor of the school’s law review.
Barrett then held two high-profile conservative clerkships, first with Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, from 1997 to 1998, and then with the late Justice Antonin Scalia, from 1998 to 1999. After leaving her Supreme Court clerkship, she spent a year practicing law at Miller, Cassidy, Larroca & Lewin, a prestigious Washington, D.C., litigation boutique that also claims as alumni former U.S. solicitor general Seth Waxman, former deputy attorney general Jamie Gorelick, and John Elwood, the head of Arnold & Porter’s appellate practice and a regular contributor to SCOTUSblog. In 2001, Miller Cassidy merged with Baker Botts, a larger, Texas-based firm, and Barrett spent another year there before leaving for academia. To the chagrin of Democratic senators during her confirmation process for the 7th Circuit, Barrett was able to recall only a few of the cases on which she worked, and she indicated that she never argued any appeals while in private practice.
A prolific stint in academia
Barrett spent a year as a law and economics fellow at George Washington University before heading to her alma mater, Notre Dame, in 2002 to teach federal courts, constitutional law and statutory interpretation. Barrett was named a professor of law at the school in 2010; four years later, she became the Diane and M.O. Research Chair of Law. Barrett was named “distinguished professor of the year” three times.
While at Notre Dame, Barrett signed a 2012 “statement of protest” condemning the accommodation that the Obama administration created for religious employers who were subject to the Affordable Care Act’s birth control mandate. The statement lamented that the accommodation “changes nothing of moral substance and fails to remove the assault on individual liberty and the rights of conscience which gave rise to the controversy.” Barrett was also a member of the Federalist Society, the conservative legal group, from 2005 to 2006 and then again from 2014 to 2017. In response to written questions from Democratic senators during her 7th Circuit confirmation process, Barrett indicated that she had rejoined the group because it gave her “the opportunity to speak to groups of interested, engaged students on topics of mutual interest,” but she added that she had never attended the group’s national convention.
During her 15 years as a full-time law professor, Barrett’s academic scholarship was prolific. Several of her articles, however, drew fire at Barrett’s confirmation hearing, with Democratic senators suggesting that they indicate that Barrett would be influenced by her Catholic faith, particularly on the question of abortion.
Barrett co-wrote her first law review article, “Catholic Judges in Capital Cases,” with Notre Dame law professor John Garvey (now the president of the Catholic University of America); the article was published in the Marquette Law Review in 1998, shortly after her graduation from Notre Dame. It explored the effect of the Catholic Church’s teachings on the death penalty on federal judges, and it used the church’s teachings on abortion and euthanasia as a comparison point, describing the prohibitions on abortion and euthanasia as “absolute” because they “take away innocent life.” The article also noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States.” Barrett and Garvey observed that they did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
When questioned about the article at her 7th Circuit confirmation hearing, Barrett stressed that she did not believe it was “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law,” and she pledged that her views on abortion “or any other question will have no bearing on the discharge of my duties as a judge.” She acknowledged that, if she were instead being nominated to serve as a federal trial judge, she “would not enter an order of execution,” but she assured senators that she did not intend “as a blanket matter to recuse myself in capital cases if I am confirmed” and added that she had “fully participated in advising Justice Scalia in capital cases as a law clerk.”
Barrett’s responses did not mollify Feinstein, who suggested that Barrett had a “long history of believing that religious beliefs should prevail.” In a widely reported exchange, Feinstein told Barrett that, based on Barrett’s 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 years in this country.”
In another article, “Stare Decisis and Due Process,” published in the University of Colorado Law Review, Barrett discussed the legal doctrine that generally requires courts to follow existing precedent, even if they might believe that it is wrong. Barrett wrote that courts and commentators “have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books”; in a footnote, she cited (among other things) Planned Parenthood v. Casey, the 1992 decision reaffirming Roe v. Wade. Barrett’s detractors characterized the statement as criticism of Roe itself, while supporters such as conservative legal activist Ed Whelan countered that the statement did not reflect Barrett’s views on Roe itself, but instead was just an example of competing opinions on the reliance interests in Roe.
Path to the federal bench
Trump nominated Barrett to the 7th Circuit on May 8, 2017. Despite some criticism from Democrats, she garnered bipartisan support at her confirmation hearing. A group of 450 former students signed a letter to the Senate Judiciary Committee, telling senators that their support was “driven not by politics, but by the belief that Professor Barrett is supremely qualified.” And she had the unanimous support of her 49 Notre Dame colleagues, who wrote that they had a “wide range of political views” but were “united however in our judgment about Amy.”
After Barrett’s confirmation hearing but before the Senate voted on her nomination, The New York Times reported that Barrett was a member of a group called People of Praise. Group members, the Times indicated, “swear a lifelong oath of loyalty to one another, and are assigned and accountable to a personal adviser.” Moreover, the Times added, the group “teaches that husbands are the heads of their wives and should take authority for their family.” The newspaper quoted legal experts who worried that such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”
Barrett declined the Times’ request for an interview about People of Praise, whose website describes the group as an “ecumenical, charismatic, covenant community” modeled on the “first Christian community.” “Freedom of conscience,” the website says, “is a key to our diversity.” In 2018, Slate interviewed the group’s leader, a physics and engineering professor at Notre Dame, who explained that members of the group “often make an effort to live near one another” and agree to donate 5% of their income to the group.
On Oct. 31, 2017, Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly; Tim Kaine of Virginia; and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.
Barrett as a judge: Gun rights and abortion
In a story in the National Review in August 2020, conservative legal activist Carrie Severino described Barrett as a “champion of originalism” during her short tenure so far on the 7th Circuit. In the 2019 case Kanter v. Barr, the court of appeals upheld the mail fraud conviction of the owner of an orthopedic footwear company. He argued that federal and state laws that prohibit people convicted of felonies from having guns violate his Second Amendment right to bear arms. The majority rejected that argument. It explained that the government had shown that the laws are related to the government’s important goal of keeping guns away from people convicted of serious crimes.
Barrett dissented. At the time of the country’s founding, she said, legislatures took away the gun rights of people who were believed to be dangerous. But the laws at the heart of Kanter’s case are too broad, she argued, because they ban people like Kanter from having a gun without any evidence that they pose a risk. Barrett stressed that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”
During her time on the court of appeals, Barrett has grappled with the issue of abortion twice – both times in dealing with requests for the full court of appeals to rehear a case, rather than as part of a three-judge panel. In 2018, the full court ordered rehearing en banc in a challenge to an Indiana law requiring fetal remains to be either buried or cremated after an abortion but then vacated that order and reinstated the original opinion blocking the state from enforcing the law.
Barrett joined a dissent from the denial of rehearing en banc written by Judge Frank Easterbrook. Easterbrook began by addressing a separate provision of the law that had also been struck down but was not at issue in the rehearing proceedings: It would bar abortions based on the race, sex or disability (such as Down syndrome) of the fetus. Characterizing the provision as a means of preventing prospective parents from “[u]sing abortion as a way to promote eugenic goals,” Easterbrook expressed doubt that the Constitution bars states from enacting such laws.
Indiana later went to the Supreme Court, which reversed the 7th Circuit’s opinion on the provision governing fetal remains. States have an interest in the proper disposal of fetal remains, the justices reasoned, and this law “is rationally related to” that interest. But the justices did not weigh in on the part of the 7th Circuit’s decision that struck down the ban on abortions based on race, sex or disability, leaving the state unable to enforce that provision.
In 2019, Barrett indicated that she wanted the full 7th Circuit to hear a challenge to an Indiana law requiring young women to notify their parents before obtaining an abortion after a three-judge panel ruled that the law was unconstitutional. She joined a dissent from the denial of rehearing by Judge Michael Kanne, who wrote that “[p]reventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.” The state asked the Supreme Court to weigh in, and the justices sent the case back to the lower courts this summer for another look in light of their ruling in June Medical Services v. Russo, which struck down a Louisiana law that requires doctors who perform abortions to have the right to admit patients at nearby hospitals.
Also in 2019, Barrett joined an opinion that upheld a Chicago ordinance that bars anti-abortion “sidewalk counselors” from approaching women entering an abortion clinic. The Chicago ordinance was modeled after a Colorado law that the Supreme Court upheld in 2000 in Hill v. Colorado, but challengers argued that later decisions by the Supreme Court “have so thoroughly undermined Hill’s reasoning that we need not follow it.” Judge Diane Sykes – who is also on Trump’s list of potential nominees, although now an unlikely candidate at age 62 – wrote that “[t]hat’s a losing argument in the court of appeals. The Court’s intervening decisions have eroded Hill’s foundation, but the case still binds us; only the Supreme Court can say otherwise.” The Supreme Court denied the challengers’ petition for review in July 2020.
Barrett as a judge: Sex discrimination on campus and immigration policy
In Doe v. Purdue University, Barrett wrote for a three-judge panel that reinstated a lawsuit filed against the university and its officials by a student who had been found guilty, through the university’s student discipline program, of sexual violence. One expert who advises colleges and universities on compliance with Title IX, a federal law that bars gender discrimination in education, told The Washington Post that the opinion was a “trendsetter” that would make it easier for students to bring lawsuits against universities to trial.
The student, known as John Doe, was suspended from school, which in turn led to his expulsion from the Navy ROTC program, the loss of his scholarship and the end of his plans to join the Navy after graduation. The court of appeals agreed with the student that he should be allowed to pursue his claim alleging that the process used to determine his guilt or innocence violated the Constitution. “Purdue’s process,” Barrett wrote, “fell short of what even a high school must provide to a student facing a days-long suspension.”
The court also revived the student’s statutory claim under Title IX. Barrett observed that although a 2011 letter from the Department of Education to colleges and universities warning schools to vigorously investigate and punish sexual misconduct or risk losing federal funds would give Doe “a story about why Purdue might have been motivated to discriminate against males accused of sexual assault,” it might not, she observed, standing alone, be enough for his case to go forward. However, she continued, the combination of the letter and facts suggesting that university officials had chosen to believe his alleged victim “because she is a woman and to disbelieve John Doe because he is a man” would suffice for his case to continue.
In June 2020, Barrett dissented from a decision that upheld a district court order blocking the Trump administration from enforcing the “public charge” rule, which bars noncitizens from receiving a green card if the government believes they are likely to rely on public assistance. The district court had put the administration’s 2019 interpretation of the rule on hold, ruling that it likely exceeded the scope of the underlying “public charge” statute, which according to the district court requires a longer and more substantial dependence on government assistance before someone may be considered a “public charge.” In February, a divided Supreme Court issued an emergency order allowing the federal government to begin enforcing the rule while its appeals were pending.
In her dissent, Barrett rejected the challengers’ efforts to portray the public charge statute as narrow. The current law, she explained, “was amended in 1996 to increase the bite of the public charge determination.” As a result, she continued, it is “not unreasonable to describe someone who relies on the government to satisfy a basic necessity for a year, or multiple basic necessities for a period of months, as falling within the definition of a term that denotes a lack of self-sufficiency.” What the challengers are really objecting to, she suggested, is “this policy choice” or even the very idea of excluding legal immigrants who are deemed likely to depend on government assistance. But, she concluded, litigation “is not the vehicle for resolving policy disputes.”
In Yafai v. Pompeo, Barrett wrote for a three-judge panel that agreed that the wife of a U.S. citizen could not challenge the denial of her visa application. A consular officer rejected the application by Zahoor Ahmed, a Yemeni citizen, on the ground that she had attempted to smuggle two children into the United States. Ahmed and her husband told the embassy that the children she was accused of smuggling had died in a drowning accident and provided documentation, at the embassy’s request.
Relying on a doctrine known as consular nonreviewability, which prohibits courts from reviewing visa decisions made by consular officials overseas, Barrett concluded that it was enough that the consular officer cited the provision of federal immigration law on which he relied and the basic facts at the heart of her case. Because Ahmed and her husband did not show that the consular officer had acted in bad faith in denying her visa application, courts could not look behind that decision. If anything, Barrett suggested, the fact that consular officers had asked for additional documents “suggests a desire to get it right,” and she said that an email from an embassy officer to Ahmed’s lawyer “reveals good-faith reasons for rejecting the plaintiffs’ response to the smuggling charge.”
Barrett as a judge: Other cases
One case that would almost certainly draw attention if she were nominated came shortly after she took the bench: EEOC v. AutoZone, in which the federal government asked the full court of appeals to reconsider a ruling against the Equal Employment Opportunity Commission in its lawsuit against AutoZone, an auto parts store. The EEOC had argued that the store violated Title VII of the Civil Rights Act, which bars employees from segregating or classifying employees based on race, when it used race as a determining factor in assigning employees to different stores – for example, sending African American employees to stores in heavily African American neighborhoods. A three-judge panel (that did not include Barrett) ruled for AutoZone; Barrett joined four of her colleagues in voting to deny rehearing by the full court of appeals.
Three judges – Chief Judge Diane Wood and Judges Ilana Diamond Rovner and David Hamilton – would have granted rehearing en banc. Those three also had strong words in the dissenting opinion they filed. They alleged that, under “the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII as long as the ‘separate’ facilities really are ‘equal’” – a conclusion, they continued, that is “contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. Board of Education.”
In Schmidt v. Foster, Barrett dissented from the panel’s ruling in favor of a Wisconsin man who admitted that he had shot his wife seven times, killing her in their driveway. Scott Schmidt argued that he had been provoked, which would make his crime second-degree, rather than first-degree, homicide. The trial judge in a state court reviewed that claim at a pretrial hearing that prosecutors did not attend, and at which Schmidt’s attorney was not allowed to speak. The judge rejected Schmidt’s claim of provocation, and Schmidt was convicted of first-degree homicide and sentenced to life in prison. When Schmidt sought to overturn his conviction in federal court, the panel agreed that Schmidt had been denied his Sixth Amendment right to counsel, and the court of appeals sent the case back to the lower court.
Barrett disagreed with her colleagues. Her dissent began by emphasizing that the standard for federal post-conviction relief is “intentionally difficult because federal habeas review of state convictions” interferes with the states’ efforts to enforce their own laws. In this case, she contended, the state court’s decision rejecting Schmidt’s Sixth Amendment claim could not have been “contrary to” or “an unreasonable application of” clearly established federal law (the requirement for relief in federal court) because the Supreme Court has never addressed a claim that a defendant has a right to counsel in a pretrial hearing like the one at issue in this case. While acknowledging that “[p]erhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case,” she warned that federal law “precludes us from disturbing a state court’s judgment on the ground that a state court decided an open question differently than we would — or, for that matter, differently than we think the [Supreme] Court would.”
In Akin v. Berryhill, Barrett joined an unsigned decision in favor of a woman whose application for Social Security disability benefits had been denied by an administrative law judge. The panel agreed with the woman, Rebecca Akin, that the judge had incorrectly “played doctor” by interpreting her MRI results on his own, and it instructed the judge to take another look at his determination that Akin was not credible. The panel indicated that it was “troubled by the ALJ’s purported use of objective medical evidence to discredit Akin’s complaints of disabling pain,” noting that fibromyalgia (one of Akin’s ailments) “cannot be evaluated or ruled out by using objective tests.” It added that, among other things, the administrative law judge should not have discredited Akin’s choice to go with a more conservative course of treatment when she explained that “she was afraid of needles and that she wanted to wait until her children finished school before trying more invasive treatment.”
Barrett has been married for over 18 years to Jesse Barrett, a partner in a South Bend law firm who spent 13 years as a federal prosecutor in Indiana. They have seven children (only two fewer than her old boss, Scalia). At her 7th Circuit confirmation hearing, Barrett introduced three of her daughters, who were sitting behind her. She told senators that one daughter, then-13-year-old Vivian, was adopted from Haiti at the age of 14 months, weighing just 11 pounds; she was so weak at the time that the Barretts were told she might never walk normally or talk. The Barretts adopted a second child, Jon Peter, from Haiti after the 2011 earthquake, and Barrett described their youngest child, Benjamin, as having special needs that “present unique challenges for all of us.” Since becoming a judge, Barrett has reportedly commuted from her home in South Bend to Chicago, roughly 100 miles away, a few days a week. If she were nominated and confirmed to fill Ginsburg’s seat, she would likely move her family to the Washington, D.C., area and trade that commute for a shorter one to 1 First Street, N.E.
This article, which originally ran at Howe on the Court, is an updated version of a previous article on SCOTUSblog from July 2018.
Posted in Featured, Profiling potential nominees to succeed Justice Ginsburg
Recommended Citation: Amy Howe, Profile of a potential nominee: Amy Coney Barrett, SCOTUSblog (Sep. 21, 2020, 5:00 PM), https://www.scotusblog.com/2020/09/profile-of-a-potential-nominee-amy-coney-barrett/
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Amy Coney Barrett (born January 28, 1972)[1][2] is an American lawyer, jurist, and academic who serves as a circuit judge on the U.S. Court of Appeals for the Seventh Circuit. Barrett considers herself a public-meaning originalist; her judicial philosophy has been likened to that of her mentor and former boss, Antonin Scalia.[3] Barrett’s scholarship focuses on originalism.
| Amy Coney Barrett | |
|---|---|
| Barrett in 2018 | |
| Judge of the United States Court of Appeals for the Seventh Circuit | |
| Incumbent | |
| Assumed office November 2, 2017 | |
| Appointed by | Donald Trump |
| Preceded by | John Daniel Tinder |
| Personal details | |
| Born | January 28, 1972(age 48) New Orleans, Louisiana, U.S. |
| Spouse(s) | Jesse Barrett |
| Education | Rhodes College (BA) University of Notre Dame(JD) |
| Academic background | |
| Academic work | |
| Discipline | Jurisprudence |
| Institutions | Notre Dame Law School |
| Website | Notre Dame Law Biography |
Barrett was nominated to the Seventh Circuit Court of Appeals by President Donald Trump on May 8, 2017 and confirmed by the Senate on October 31, 2017. While serving on the federal bench, she was a professor of law at Notre Dame Law School, where she has taught civil procedure, constitutional law, and statutory interpretation.[4][2][5][6] Shortly after her confirmation to the Seventh Circuit Court of Appeals in 2017, Barrett was added to President Trump’s list of potential Supreme Court nominees.[7]Trump reportedly intends to nominate her to succeed Ruth Bader Ginsburg on the United States Supreme Court.[8]
Early life and education
Barrett was born in New Orleans, Louisiana, in 1972.[2] She is the eldest of seven children, with five sisters and a brother. Her father Michael Coney worked as an attorney for Shell Oil Company, and her mother Linda was a homemaker. Barrett grew up in Metairie, a suburb of New Orleans, and graduated from St. Mary’s Dominican High School in 1990.[9]
Barrett studied English literature at Rhodes College, graduating in 1994 with a Bachelor of Arts magna cum laude and Phi Beta Kappa membership.[10] She then studied law at Notre Dame Law School on a full-tuition scholarship. She served as an executive editor of the Notre Dame Law Review[11] and graduated first in her class in 1997 with a Juris Doctor summa cum laude.[12]
Career
Clerkships and private practice
After law school Barrett spent two years as a judicial law clerk, first for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit from 1997 to 1998,[13] then for Justice Antonin Scalia of the U.S. Supreme Court from 1998 to 1999.[13]
From 1999 to 2002, she practiced law at Miller, Cassidy, Larroca & Lewin in Washington, D.C.[11][14]
Teaching and scholarship
Barrett served as a visiting associate professor and John M. Olin Fellow in Law at George Washington University Law School for a year before returning to her alma mater, Notre Dame Law School in 2002.[15]At Notre Dame she taught federal courts, constitutional law, and statutory interpretation. Barrett was named a Professor of Law in 2010, and from 2014 to 2017 held the Diane and M.O. Miller Research Chair of Law.[16] Her scholarship focuses on constitutional law, originalism, statutory interpretation, and stare decisis.[12] Her academic work has been published in journals such as the Columbia, Cornell, Virginia, Notre Dame, and TexasLaw Reviews.[15] Some of her most significant publications are Suspension and Delegation, 99 Cornell L. Rev. 251 (2014), Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2013), The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 101 (2006), and Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
At Notre Dame, Barrett received the “Distinguished Professor of the Year” award three times.[15] She taught Constitutional Law, Civil Procedure, Evidence, Federal Courts, Constitutional Theory Seminar, and Statutory Interpretation Seminar.[15] Barrett has continued to teach seminars as a sitting judge.[17]
Federal judicial service
Nomination and confirmation
President Donald Trump nominated Barrett on May 8, 2017, to serve as a United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit, to the seat vacated by Judge John Daniel Tinder, who took senior status on February 18, 2015.[18][19]Judge Laurence Silberman, for whom Barrett first clerked after law school, swearing her in at her investiture as a judge on the Seventh Circuit.
A hearing on Barrett’s nomination before the Senate Judiciary Committee was held on September 6, 2017.[20] During the hearing, Senator Dianne Feinstein questioned Barrett about a law review article Barrett co-wrote in 1998 with Professor John H. Garvey in which she argued that Catholic judges should in some cases recuse themselves from death penalty cases due to their moral objections to the death penalty. The article concluded that the trial judge should recuse herself instead of entering the order. Asked to “elaborate on the statements and discuss how you view the issue of faith versus fulfilling the responsibility as a judge today,” Barrett said that she had participated in many death-penalty appeals while serving as law clerk to Scalia, adding, “My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge”[21][22] and “It is never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”[23] Worried that Barrett would not uphold Roe v. Wade given her Catholic beliefs, Feinstein followed Barrett’s response by saying, “the dogma lives loudly within you, and that is a concern.”[24][25][26] The hearing made Barrett popular with religious conservatives,[11] and in response, the conservative Judicial Crisis Network began to sell mugs with Barrett’s photo and Feinstein’s “dogma” remark.[27]Feinstein’s and other senators’ questioning was criticized by some Republicans and other observers, such as university presidents John I. Jenkins and Christopher Eisgruber, as improper inquiry into a nominee’s religious belief that employed an unconstitutional “religious test” for office;[23][28][29]others, such as Nan Aron, defended Feinstein’s line of questioning.[29]
Lambda Legal, an LGBT civil rights organization, co-signed a letter with 26 other gay rights organizations opposing Barrett’s nomination. The letter expressed doubts about her ability to separate faith from her rulings on LGBT matters.[30][31] During her Senate confirmation hearing, Barrett was questioned about landmark LGBTQ legal precedents such as Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas. Barrett said these cases are “binding precedents” that she intended to “faithfully follow if confirmed” to the appeals court, as required by law.[30] The letter co-signed by Lambda Legal said “Simply repeating that she would be bound by Supreme Court precedent does not illuminate—indeed, it obfuscates—how Professor Barrett would interpret and apply precedent when faced with the sorts of dilemmas that, in her view, ‘put Catholic judges in a bind.'”[30] Carrie Severino of the Judicial Crisis Network later said that warnings from LGBT advocacy groups about shortlisted nominees to replace Justice Anthony Kennedy, including Barrett, were “very much overblown” and called them “mostly scare tactics.”[30]
In 2015, Barrett signed a letter in support of the Ordinary Synod of Bishops on the Family that endorsed the Catholic Church’s teachings on human sexuality and its definition of marriage as between one man and one woman. When asked about the letter, she testified that the Church’s definition of marriage is legally irrelevant.[32][33]
Barrett’s nomination was supported by every law clerk she had worked with and all of her 49 faculty colleagues at Notre Dame Law school. 450 former students signed a letter to the Senate Judiciary Committee supporting Barrett’s nomination.[34][35]
On October 5, 2017, the Senate Judiciary Committee voted 11–9 on party lines to recommend Barrett and report her nomination to the full Senate.[36][37] On October 30, the Senate invoked cloture by a vote of 54–42.[38] It confirmed her by a vote of 55–43 on October 31, with three Democrats—Joe Donnelly, Tim Kaine, and Joe Manchin—voting for her.[10] She received her commission two days later.[2] Barrett is the first and to date only woman to occupy an Indiana seat on the Seventh Circuit.[39]
Notable cases
Title IX
In Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), the court, in a unanimous decision written by Barrett, reinstated a suit brought by a male Purdue University student (John Doe) who had been found guilty of sexual assault by Purdue University, which resulted in a one-year suspension, loss of his Navy ROTC scholarship, and expulsion from the ROTC affecting his ability to pursue his chosen career in the Navy.[40] Doe alleged the school’s Advisory Committee on Equity discriminated against him on the basis of his sex and violated his rights to due process by not interviewing the alleged victim, not allowing him to present evidence in his defense, including an erroneous statement that he confessed to some of the alleged assault, and appearing to believe the victim instead of the accused without hearing from either party or having even read the investigation report. The court found that Doe had adequately alleged that the university deprived him of his occupational liberty without due process in violation of the Fourteenth Amendment and had violated his Title IX rights “by imposing a punishment infected by sex bias,” and remanded to the District Court for further proceedings.[41][42][43]
Title VII
In EEOC v. AutoZone, the Seventh Circuit considered the federal government’s appeal from a ruling in a suit brought by the Equal Employment Opportunity Commission against AutoZone; the EEOC argued that the retailer’s assignment of employees to different stores based on race (e.g., “sending African American employees to stores in heavily African American neighborhoods”) violated Title VII of the Civil Rights Act. The panel, which did not include Barrett, ruled in favor of AutoZone. An unsuccessful petition for rehearing en banc was filed. Three judges—Chief Judge Diane Wood and Judges Ilana Rovner and David Hamilton—voted to grant rehearing, and criticized the panel decision as upholding a “separate-but-equal arrangement”; Barrett and four other judges voted to deny rehearing.[11]
Immigration
In Cook County v. Wolf, 962 F.3d 208 (7th Cir. 2020), Barrett wrote a 40-page dissent from the majority’s decision to uphold a preliminary injunction on the Trump administration’s controversial “public charge rule“, which heightened the standard for obtaining a green card. In her dissent, she argued that any noncitizens who disenrolled from government benefits because of the rule did so due to confusion about the rule itself rather than from its application, writing that the vast majority of the people subject to the rule are not eligible for government benefits in the first place. On the merits, Barrett departed from her colleagues Wood and Rovner, who held that DHS’s interpretation of that provision was unreasonable under Chevron Step Two. Barrett would have held that the new rule fell within the broad scope of discretion granted to the Executive by Congress through the Immigration and Nationality Act.[44][45][46] The public charge issue is the subject of a circuit split.[44][46][47]
In Yafai v. Pompeo, 924 F.3d 969 (7th Cir. 2019), the court considered a case brought by a Yemeni citizen, Ahmad, and her husband, a U.S. citizen, who challenged a consular officer’s decision to twice deny Ahmad’s visa application under the Immigration and Nationality Act. Yafai, the U.S. citizen, argued that the denial of his wife’s visa application violated his constitutional right to live in the United States with his spouse.[48] In an 2-1 majority opinion authored by Barrett, the court held that the plaintiff’s claim was properly dismissed under the doctrine of consular nonreviewability. She declined to address whether Yafai had been denied a constitutional right (or whether a constitutional right to live in the United States with his spouse existed) because even if a constitutional right was implicated, the court lacked authority to disturb the consular officer’s decision to deny Ahmad’s visa application because that decision was facially legitimate and bona fide. Following the panel’s decision, Yafai filed a petition for rehearing en banc; the petition was denied, with eight judges voting against rehearing and three in favor, Wood, Rovner and Hamilton. Barrett and Judge Joel Flaumconcurred in the denial of rehearing.[48][49]
Second Amendment
In Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), Barrett dissented when the court upheld a law prohibiting convicted nonviolent felons from possessing firearms. The plaintiffs had been convicted of mail fraud. The majority upheld the felony dispossession statutes as “substantially related to an important government interest in preventing gun violence.” In her dissent, Barrett argued that while the government has a legitimate interest in denying gun possession to felons convicted of violent crimes, there is no evidence that denying guns to nonviolent felons promotes this interest, and that the law violates the Second Amendment.[50][51]
Fourth Amendment
In Rainsberger v. Benner, 913 F.3d 640 (7th Cir. 2019), the panel, in an opinion by Barrett, affirmed the district court’s ruling denying the defendant’s motion for summary judgment and qualified immunity in a 42 U.S.C. § 1983 case. The defendant, Benner, was a police detective who knowingly provided false and misleading information in a probable cause affidavit that was used to obtain an arrest warrant against Rainsberger. (The charges were later dropped and Rainsberger was released.) The court found the defendant’s lies and omissions violated “clearly established law” and thus Benner was not shielded by qualified immunity.[52]
The case United States v. Watson, 900 F.3d 892 (7th Cir. 2018) involved police responding to an anonymous tip that people were “playing with guns” in a parking lot. The police arrived and searched the defendant’s vehicle, taking possession of two firearms; the defendant was later charged with being a felon in possession of a firearm. The district court denied the defendant’s motion to suppress. On appeal, the Seventh Circuit, in a decision by Barrett, vacated and remanded, determining that the police lacked probable cause to search the vehicle based solely upon the tip, when no crime was alleged. Barrett distinguished Navarette v. California and wrote, “the police were right to respond to the anonymous call by coming to the parking lot to determine what was happening. But determining what was happening and immediately seizing people upon arrival are two different things, and the latter was premature…Watson’s case presents a close call. But this one falls on the wrong side of the Fourth Amendment.”[53]
In a 2013 Texas Law Review article, Barrett included as one of only seven Supreme Court “superprecedents“, Mapp vs Ohio (1961); the seminal case where the court found through the doctrine of selective incorporation that the 4th Amendment’s protections against unreasonable searches and seizures was binding on state and local authorities in the same way it historically applied to the federal government.
Civil procedure and standing
In Casillas v. Madison Ave. Associates, Inc., 926 F.3d 329 (7th Cir. 2019), the plaintiff brought a class-action lawsuit against Madison Avenue, alleging that the company violated the Fair Debt Collection Practices Act (FDCPA) when it sent her a debt-collection letter that described the FDCPA process for verifying a debt but failed to specify that she was required to respond in writing to trigger the FDCPA protections. Casillas did not allege that she had tried to verify her debt and trigger the statutory protections under the FDCPA, or that the amount owed was in any doubt. In a decision written by Barrett, the panel, citing the Supreme Court’s decision in Spokeo, Inc. v. Robins, found that the plaintiff’s allegation of receiving incorrect or incomplete information was a “bare procedural violation” that was insufficiently concrete to satisfy the Article III‘s injury-in-fact requirement. Wood dissented from the denial of rehearing en banc. The issue created a circuit split.[54][55][56]
Judicial philosophy and political views
Barrett considers herself an originalist. She is a constitutional scholar with expertise in statutory interpretation.[10] Reuters described Barrett as a “a favorite among religious conservatives,” and said that she has supported expansive gun rights and voted in favor of one of the Trump administration’s anti-immigration policies.[57]
Barrett was one of Justice Antonin Scalia‘s law clerks. She has spoken and written of her admiration of his close attention to the text of statutes. She has also praised his adherence to originalism.[58]
In 2013, Barrett wrote a Texas Law Review article on the doctrine of stare decisis wherein she listed seven cases that should be considered “superprecedents”—cases that the court would never consider overturning. The list included Brown v. Board of Education but specifically excluded Roe v. Wade. In explaining why it was not included, Barrett referenced scholarship agreeing that in order to qualify as “superprecedent” a decision must enjoy widespread support from not only jurists but politicians and the public at large to the extent of becoming immune to reversal or challenge. She argued the people must trust the validity of a ruling to such an extent the matter has been taken “off of the court’s agenda,” with lower courts no longer taking challenges to them seriously. Barrett pointed to Planned Parenthood v. Casey as specific evidence Roe had not yet attained this status.[59] The article did not include any pro-Second Amendment or pro-LGBT cases as “Super-Precedent”.[30][31] When asked during her confirmation hearings why she did not include any pro-LGBT cases as “superprecedent”, Barrett explained that the list contained in the article was collected from other scholars and not a product of her own independent analysis on the subject.[32][33]
Barrett has never ruled directly on a case pertaining to abortion rights, but she did vote to rehear a successful challenge to Indiana’s parental notification law in 2019. In 2018, Barrett voted against striking down another Indiana law requiring burial or cremation of fetal remains. In both cases, Barrett voted with the minority. The Supreme Court later reinstated the fetal remains law and in July 2020 it ordered a rehearing in the parental notification case.[57] At a 2013 event reflecting on the 40th anniversary of Roe v. Wade, she described the decision—in Notre Dame Magazine‘s paraphrase—as “creating through judicial fiat a framework of abortion on demand.”[60][61] She also remarked that it was “very unlikely” the court would overturn the core of Roe v. Wade: “The fundamental element, that the woman has a right to choose abortion, will probably stand. The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”[62][63] NPR said that those statements were made before the election of Donald Trump and the changing composition of the Supreme Court to the right subsequent to his election, which could make Barrett’s vote pivotal in overturning Roe v. Wade.[64]
Barrett was critical of Chief Justice John Roberts’opinion in the 5–4 decision that upheld the constitutionality of the central provision in the Affordable Care Act (Obamacare) in NFIB vs. Sebelius. Roberts’s opinion defended the constitutionality of the individual mandate of the Affordable Care Act by characterizing it as a “tax.” Barrett disapproved of this approach, saying Roberts pushed the ACA “beyond it’s plausible limit to save it.”[64][65][66][67] She criticized the Obama administration for providing employees of religious institutions the option of obtaining birth controlwithout having the religious institutions pay for it.[65]
Potential Supreme Court nomination
Barrett has been on President Trump’s list of potential Supreme Court nominees since 2017, almost immediately after her court of appeals confirmation. In July 2018, after Anthony Kennedy‘s retirement announcement, she was reportedly one of three finalists Trump considered, along with Judge Raymond Kethledge and Judge Brett Kavanaugh.[16][68] Trump chose Kavanaugh.[69]Reportedly, although Trump liked Barrett, he was concerned about her lack of experience on the bench.[70] In the Republican Party, Barrett was favored by social conservatives.[70]
After Kavanaugh’s selection, Barrett was viewed as a possible Trump nominee for a future Supreme Court vacancy.[71] Trump was reportedly “saving” Ruth Bader Ginsburg‘s seat for Barrett if Ginsburg retired or died during his presidency.[72] Ginsburg died on September 18, 2020, and Barrett has been widely mentioned as the front-runner to succeed her.[73][74][75][76]
Personal life
Judge Barrett with her husband, Jesse
Since 1999, Barrett has been married to fellow Notre Dame Law graduate Jesse M. Barrett, a partner at SouthBank Legal in South Bend, Indiana. Previously, Jesse Barrett worked as an Assistant U.S. Attorneyfor the Northern District of Indiana for 13 years.[77][78][79] They live in South Bend and have seven children, ranging in age from 8-19.[80] Two of the Barrett children are adopted from Haiti. Their youngest biological child has special needs.[79][2][81]Barrett is a practicing Catholic.[82][83]
In September 2017, The New York Times reported that Barrett was an active member of a small, tightly knit Charismatic Christian group called People of Praise.[84][85] Founded in South Bend, the group is associated with the Catholic Charismatic Renewalmovement; it is ecumenical and not formally affiliated with the Catholic Church, but about 90% of its members are Catholic.[85][86]
Affiliations and recognition
From 2010 to 2016, Barrett served by appointment of the Chief Justice on the Advisory Committee for the Federal Rules of Appellate Procedure.[15]
Barrett was a member of the Federalist Society from 2005 to 2006 and from 2014 to 2017.[25][10][11] She is a member of the American Law Institute.[87]
Selected publications
- Barrett, Amy Coney (2017). “Originalism and Stare Decisis”. Notre Dame Law Review. 92: 1921–1944.
- Barrett, Amy Coney; Nagle, John Copeland (2016). “Congressional Originalism”. University of Pennsylvania Journal of Constitutional Law. 19: 1–44.
- Barrett, Amy Coney (2017). “Countering the Majoritarian Difficulty [review]”. Constitutional Commentary. 32: 61–84.
- Barrett, Amy Coney (2014). “Suspension and Delegation”. Cornell Law Review. 99: 251–326.
- Barrett, Amy Coney (2013). “Precedent and Jurisprudential Disagreement” (PDF). Texas Law Review. 91: 1711–1737.
- Barrett, Amy Coney (2010). “Substantive Canons and Faithful Agency” (PDF). B.U. L. Rev.: 109–182.
- Barrett, Amy Coney (2008). “Introduction [Symposium: Stare Decisis and Nonjudicial Actors]”. Notre Dame Law Review. 83: 1147–1172.
- Barrett, Amy Coney (2008). “Procedural Common Law” (PDF). Virginia Law Review. 94: 813–888.
- Barrett, Amy Coney (2006). “The Supervisory Power of the Supreme Court”. Columbia Law Review. 106: 324–387.
- Barrett, Amy Coney (2005). “Statutory Stare Decisis in the Courts of Appeals”. The George Washington Law Review. 73: 317–352.
- Barrett, Amy Coney (2003). “Stare Decisis and Due Process”. U. Colo. L. Rev. 74: 1011–1074.
- Barrett, Amy Coney; Garvey, John H. (1998). “Catholic Judges in Capital Cases”. Marquette Law Review. 81: 303.
See also
References
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Amy Coney Barrett was appointed to the U.S. Court of Appeals for the Seventh Circuit in November 2017. She serves on the faculty of the Notre Dame Law School, teaching on constitutional law, federal courts, and statutory interpretation, and previously served on the Advisory Committee for the Federal Rules of Appellate Procedure. She earned her bachelor’s degree from Rhodes College in 1994 and her J.D. from Notre Dame Law School in 1997. Following law school, Barrett clerked for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court. She also practiced law with Washington, D.C. law firm Miller, Cassidy, Larroca & Lewin.
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