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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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I can tell you a few things about her, though. For one thing, she did not have a wild reputation, so I think that if she’s nominated, the Senate hearings will have to find something else to complain about. She was an English major and served on the Honor Council, a student body that enforced our honor code against lying and cheating (a great feature of academics at Rhodes that allowed us take-home tests in many classes). We were both in Mortar Board, an honor society. She wasn’t a political activist and was never a member of the College Republicans (I was, and we had a much larger membership than the College Democrats).
Amy at the homecoming game senior year
Candid photo in the social room (the ironing board refers to another picture)
L to R: Me, Amy Barrett, and my daughter
The Daily Hatch 
