On Sept. 26, President Donald Trump nominated Amy Coney Barrett, a conservative-leaning federal appellate judge and Notre Dame law professor, to the U.S. Supreme Court. If confirmed, Barrett, 48, will fill the role of the late Associate Justice Ruth Bader Ginsburg and could reshape the bench for generations to come.
Barrett has consistently leaned conservative on issues of gun rights and immigration. In cases ranging from harassment on the job to debt collection, her decisions have invariably tilted toward bosses and businesses. She is also a devout Catholic and a member of a small lay community called People of Praise, which has led many — including senators — to worry she will be a key vote in overturning Roe v. Wade, the seminal 1973 case that cemented a woman’s right to an abortion in the U.S.
Abigail Matthews, a UB assistant professor of political science, said that Barrett’s confirmation could shift the balance of the Court for decades.
“A lot of things will change,” Matthews said. “[If Barrett is confirmed] the Court will become one of the most conservative courts in history. The Court’s impact will be largely felt on social issues such as [the] equal protection clause and voting issues, and also in Second Amendment gun cases, among others.”
Barrett received her B.A. in English Literature from Rhodes College and graduated with a Juris Doctor degree from Notre Dame Law School. She has a lengthy legal background: she clerked for U.S. Circuit Judge Laurence Silberman and, notably, for Associate U.S. Supreme Court Justice Antonin Saclia, whom she considers a mentor. Scalia, an intellectual powerhouse, advocated an originalist interpretation of the Constitution and anchored the conservative wing of the Supreme Court until his sudden death in 2016. Barrett also practiced law from 1999-2002 before teaching constitutional law at Notre Dame from 2002 until 2017.
Barrett was confirmed to the U.S. Court of Appeals in 2017 and underwent extensive questioning about her religious beliefs and her record. Her confirmation hearing is expected to be contentious, with critics and Democrats insisting she is the ideological opposite of the iconic Ginsburg, who had one of the most consistently liberal voting records of the Court’s nine members.
Barrett has modeled her judicial philosophy on Scalia and, like him, is considered an originalist. Originalists believe the Constitution should be read as it was written, without interpretation. It leads judges to give more power to elected representatives and prevents judges from imposing their views on the law. Critics argue it is inflexible and does not allow the law to evolve to match more enlightened understandings of issues such as the equal treatment of minorities and women.
While Barrett has conservative credentials and was nominated to the high court by President Trump, Matthews said she could still surprise people on her rulings.
“There is some history of presidents being disappointed in their Supreme Court picks,” Matthews said. “For example, President Eisenhower was disappointed by his appointment of Chief Justice Earl Warren, who tended to vote more liberally than Eisenhower wanted. President Trump is trying to maximize his chances by picking someone who is deeply ideological, someone with a long track-record of voting conservatively. And that will have consequences for how the Supreme Court will vote.”
Here’s what you should know about Judge Barrett:
In a 2017 law review article, Barrett wrote, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
In the landmark 2012 case National Federation of Independent Business v. Sebelius, the Court upheld much of the law, with Justice Roberts arguing the individual mandate — which required all non-exempt individuals to purchase health insurance or pay a tax penalty — fell under Congress’ taxing powers.
The individual mandate was repealed in 2017, so some legal scholars have argued the basis for the law has disappeared. Judge Barrett has indicated she shares this viewpoint, but has not openly said how she would vote.
This differs substantially from Justice Ginsburg, who voted in favor of upholding the ACA, also called “Obamacare,” on multiple occasions and was expected to do so again in any future cases. Voting the ACA down would mean millions of people would lose their health coverage in the middle of the COVID pandemic.
With the Supreme Courts’ legalization of same-sex marriage in 2015, the Court has taken great strides towards ensuring rights for LGBTQ Americans. While Barrett has not expressly said how she might rule in cases regarding LGBTQ rights, she has spoken about her traditional views on marriage and sexuality. These conservative views have caused some LGBTQ people to worry about the future of their rights.
One example of language causing concern amongst LGBTQ people is when Barrett referred to transwomen as “physiological males,” which is considered misgendering, during an argument about if they should be allowed in women’s restrooms.
Though she has not explicitly stated she is against same-sex marriage, she has argued the Supreme Court’s role in deciding the case on marriage equality. Justice Ginsburg, on the other hand, had a history of voting for the decriminalization and rights of LGBTQ people in America. She was known to be the first Supreme Court justice to officiate a same-sex marriage. The lack of full support and acceptance of LGBTQ individuals by Barrett has caused a community concern.
The Supreme Court has notably not ruled on the Second Amendment in over 10 years, since the landmark District of Columbia v. Heller, which gave citizens the right to possess a handgun in the home for self-defense. In May, the Court reviewed New York State Rifle & Pistol Association v. City of New York, but sent it back to the lower courts for a decision.
But with Barrett on the Court this could change. Justice Brett Kavanaugh, confirmed to the Supreme Court in 2018, has made it clear that he believes any decisions regarding the Second Amendment should be made on the Amendment’s “text, history and tradition.” This view implies the Second Amendment should be looked at using textualism by considering the history and traditional meaning of the Amendment rather than the current arguments.
Barrett’s originalist views contrast with Justice Ginsburg who, in her dissent in the Heller case, said, “the Second Amendment is outdated.” Barrett could supply the vote needed for the Court to start taking on significant Second Amendment cases.
Justice Ginsburg was considered a champion of women’s rights and equality, and that extended to abortion and reproductive rights. She believed abortion was an issue of inequality. For example, Justice Ginsburg fought for women’s right to purchase contraceptives under insurance regardless of an employer’s moral or religious beliefs.
This is where many believe Judge Barrett will differ. Roe v. Wade is perhaps the most divisive issue among Americans. Barrett’s conservative Catholicism has led many to believe she will be anti-abortion, as the Catholic Church opposes all forms of abortion.
Once again, Barrett has not been explicit about how she might vote in such cases. She has stated, “All nominees are united in their belief that what they think about a precedent should not bear on how they decide cases.” Barrett believes personal opinion should not be a factor in how a judge decides a case. Along with this, though, she has made it clear she believes issues like funding for abortion and restrictions on abortion should change.
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