Amy Coney Barrett is viewed as the leading candidate to succeed Justice Ruth Bader Ginsburg on the U.S. Supreme Court.
The 48-year-old judge on the 7th Circuit Court of Appeals in Chicago is a favorite among social conservatives. They, and others on the right, view the mother of seven’s record as anti-abortion rights and hostile to the Affordable Care Act. If nominated and confirmed, she would be the youngest justice on the Supreme Court and could help reshape the law and society for generations to come.
When Justice Anthony Kennedy retired from the court in 2018, President Trump passed over Barrett, giving the nod instead to then-Judge Brett Kavanaugh. At the time, Trump told Barrett supporters that he was “saving” her to fill the Ginsburg seat, should the justice retire or die, sources say.
Behind the scenes, though, Barrett’s interview with Trump back then did not go particularly well, say sources close to the process but who are not authorized to speak publicly. She had conjunctivitis, had to wear dark glasses during the interview and was “not at her best,” as one source put it.
But this week, Barrett’s interview seems to have gone far better. Moreover, these sources say, she has the support of Senate Republican leader Mitch McConnell, R-Ky., who views her as a judge with a clearly proven conservative track record.
So who is Barrett and what kind of judge would she be?
Raised in Metairie, La., a suburb of New Orleans, Barrett’s father, Mike, was an attorney for Shell Oil and her mother was a stay-at-home mom. Barrett attended St. Mary’s Dominican High School for girls, then graduated with honors from Rhodes College, a Presbyterian-affiliated school in Tennessee, followed by graduation, summa cum laude, from Notre Dame Law School.
She clerked for the late conservative Justice Antonin Scalia, and during her clerkships, she was nicknamed “The Conenator” by fellow law clerks “for destroying flimsy legal arguments,” the Chicago Tribune reported.
After that, Barrett briefly practiced law, then taught for 15 years at Notre Dame Law School in South Bend, Ind.
She is married to Jesse Barrett, a former prosecutor now in private practice, and the couple has seven children, one with Down Syndrome and two adopted from Haiti. They live in South Bend, and she commutes to Chicago — almost an hour and 45 minutes away — where the appeals court sits.
Barrett has been a federal judge for three years. She has written about 100 opinions and “several telling dissents in which Barrett displayed her clear and consistent conservative bent,” the Associated Press notes of her judicial record.
From guns and sexual assault on campus to health care and abortion rights, Barrett has shown herself to be a conservative jurist and legal thinker in her rulings and academic writings.
“The dogma lives loudly within you”
Barrett’s confirmation hearing for the appeals court in 2017 raised hackles on both the right and the left.
The left saw Barrett as a socially conservative mirror image of Scalia, famous for his conservative approach to constitutional interpretation and passionate dissents from the high court’s abortion and gay-rights rulings. Barrett, like Scalia, is seen as an “originalist” or “textualist.” It’s a philosophy that looks strictly at the text of the constitution or statute and tries to apply original intention from the framers.
Democratic Sen. Dianne Feinstein of California, in particular, infuriated Republicans when she ticked off a list of the nominee’s writings and speeches about faith and the law.
“The dogma lives loudly within you, and that’s of concern,” Feinstein told the nominee.
Barrett responded, “If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”
Barrett is a member of a particularly conservative Christian faith group, People of Praise. Newsweek reported that the group “teaches that husbands should assume authority as the head of the household.” (Her parents are also members, and her father was a coordinator of the group’s Southern chapters.)
The New York Times reported that People of Praise “grew out of the Catholic charismatic renewal movement that began in the late 1960s and adopted Pentecostal practices such as speaking in tongues, belief in prophecy and divine healing.”
Republicans charged that Feinstein’s question betrayed an anti-Catholic bias, and Barrett was confirmed by a vote of 55 to 43, with three Democrats voting in favor of confirmation, and two not voting.
If nominated and confirmed for the Supreme Court, Barrett would be the sixth Catholic justice. All but Sonia Sotomayor were nominated by Republican presidents. A seventh, Justice Neil Gorsuch, was raised Catholic but now lists himself as Episcopalian. Two other justices — Stephen Breyer and Elena Kagan — are Jewish.
She has been critical of Roe v. Wade, the Supreme Court’s 1973 abortion decision, but in 2016, she suggested that the court most likely would hollow out the decision, leaving the basic right to abortion in place, but allowing states wide latitude to make abortion difficult to obtain.
“I don’t think the core case, Roe’s core holding that women have a right to an abortion, I don’t think that would change,” Barrett said in a discussion at Jacksonville University. “But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that will change.”
That, however, was before Trump’s election and the composition of the court moved more starkly to the right, making the outright reversal of Roe more plausible.
Similarly, the future of Obamacare could be at stake with Barrett’s nomination. The court is scheduled to hear a third challenge to the law the week after the election. Twice before the court has upheld much of the law, but that could change now, with Barrett’s vote pivotal.
Indeed, she criticized Chief Justice John Roberts’ reasoning in upholding the Affordable Care Act.
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett wrote in 2017. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress’s commerce power.”
In her academic work, Barrett has written dismissively about the doctrine of respecting the Supreme Court’s precedents, known as stare decisis.
“I tend to agree with those who say 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 thinks clearly in conflict with it,” she wrote in a 2013 law review article.
While on the 7th Circuit, Barrett wrote that the Second Amendment did not necessarily ban those convicted of felonies from owning a gun. She declared that the Wisconsin law, barring anyone convicted of a felony even if they aren’t convicted of a violent crime, to be unconstitutional.
“[L]egislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous,” Barrett wrote in a 37-page dissent.
Her reliance on originalism also came through a few lines later: “In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”
Sexual assault on campus
In 2019, Barrett wrote an opinion in a college sexual assault case, Doe v. Purdue University, “which allowed a student accused of sexual assault to sue for alleged violations of the 14th Amendment and Title IX of the Education Amendments of 1972,” the American Bar Association Journal wrote.
Barrett dissented from a 7th Circuit ruling that blocked the Trump administration’s ability to enforcing its “public charge rule” in Illinois. The administration’s change to that rule “adds barriers for immigrants seeking green cards if they rely on public benefits, food stamps or housing vouchers,” Courthouse News Service reported.
Barrett wrote that the Department of Homeland Security’s definition is not “unreasonable,” especially considering “the text of the current statute … was amended in 1996 to increase the bite of the public charge determination.”