by Tyler O'Neil: President Donald Trump will nominate a Supreme Court justice to replace Justice Ruth Bader Ginsburg on Saturday. Amy Coney Barrett, a judge on the 7th Circuit Court of Appeals, is widely considered the frontrunner. When Trump was deliberating on whom he would nominate to replace Justice Anthony Kennedy, the president said of Barrett, "I'm saving her for Ginsburg." Barrett has an impressive resume and an inspiring story. She has articulated a powerful defense of originalism, the method of interpreting the Constitution according to its original public meaning. 1. Barrett's background Amy Coney Barrett graduated from Notre Dame Law School first in her class. She has taught there for decades — and continues to teach there while serving as a judge on the 7th Circuit Court of Appeals. After graduation, she clerked at the Supreme Court for Justice Antonin Scalia. As Princeton professor Robert P. George noted, even fellow clerks who disagreed with Barrett admired her intellect. Harvard Law School professor Noah Feldman described her as "a brilliant lawyer."
As a Notre Dame graduate and professor, Barrett would break the Supreme Court law degree duopoly. All eight current justices hold degrees from one of two — and only two — law schools, Harvard and Yale.Barrett and her husband have seven children, ranging in age from 5 to 16. They adopted two of them from Haiti. One of her sons also has "special needs." As George wrote, "As someone who excelled as a legal scholar and reached the pinnacle of her profession as a Supreme Court Justice, Barrett would be an example to women hoping to combine a flourishing family life with a professional vocation."
While Barrett has only served on the 7th Circuit for three years, that represents more experience than Barack Obama's appointee, Justice Elena Kagan, who had never served as a judge prior to her nomination to the Supreme Court.
2. Judicial philosophy Barrett may have clerked for Scalia, but is she an originalist? Last year, she spoke about her judicial philosophy at the Washington, D.C., branch of my alma mater, Hillsdale College. She rebuked the notion of a "living Constitution," arguing that the judge's role is not to twist the text of the Constitution to fit his or her police prescriptions but rather to interpret the law faithfully.
"If the judge is willing not to apply the law but to decide cases in a line, in accordance with personal preference rather than the law, then she's not actually functioning as a judge at all. She's functioning as a policymaker," Barrett explained.
"And I would have had no interest in the job if the job was about policymaking and about making policy decisions," the judge said. "My interest is in contributing to our tradition of judges upholding the rule of law."
Barrett also addressed the increasing political polarization centered on the Supreme Court.
"There's a lot of talk these days about the courts being mere political institutions. But if we reduce the courts to mere politics, then why do we need them? We already have politicians. Courts are not arenas for politics. Courts are places where judges discharge the duty to uphold the rule of law," she said.
Yet the judge insisted that the Supreme Court is not partisan, not divided along the lines of Republicans and Democrats.
"So I don't think that five-four decisions or splits on courts are explicable by partisan commitments or by outcomes in particular cases. I think they're explicable by starting points, by first-order commitments. So there are differences in ways that judges approach the enterprise of interpreting the Constitution," Barrett explained.
"All judges think that the original meaning of the Constitution—its history, the way that it was understood by those who ratified it, who drafted it, the founding generation—all judges take that as a data point, as relevant," she said. "Those who are committed to originalism treat it as determinative when the original meaning is discernible. Others just treat it as a data point, but one that would not necessarily control. So that will yield different outcomes in different cases."
"Some judges approach the Constitution saying, 'There are some constitutional commitments that we're not going to back down from because the Constitution enshrines them. But with respect to those that the Constitution does not speak, we're going to leave it to democratic majorities to work out.' Others see the Constitution as having a more amorphous and evolving content and speaking to evolving values and majority—evolving values in ways that then democratic majorities don't have the freedom to make choices," the judge explained.
Barrett went on to cite Scalia, who "used to say that a judge who likes every result that she reaches is not a very good judge. In fact, she's a very bad judge. The law simply does not align with a judge's political preference or personal preference in every case."
That sure sounds originalist to me.
3. Positions on abortion Democrats are terrified that Trump's replacement for Ginsburg would overturn Roe v. Wade (1973), the case in which the Supreme Court reinterpreted the Constitution, effectively amending the Constitution to include a right to abortion. Roe is bad law and should be overturned, but it is extremely important that the Court do so in a wise way. States should be able to make their own laws restricting abortion.
Barrett, a Roman Catholic, has expressed the Catholic doctrine that life begins at conception. However, she made it extremely clear that judges should rule based on the law, not their own personal religious or philosophical convictions.
Barrett has only served on the 7th Circuit for three years, but has a limited record on abortion cases.
In 2018, the court considered a challenge to an Indiana law requiring the burning or cremation of fetal remains after an abortion. The court denied a rehearing of the case and Barrett joined a dissent written by Judge Frank Easterbrook. Easterbrook addressed a separate provision of the law that had been struck down but was not at issue in the rehearing. The law banned abortions based on the race, sex, or disability of the unborn baby. Easterbrook said he doubted that the Constitution bars states from enacting laws to prevent prospective parents from "[u]sing abortion as a way to promote eugenic goals."
Ultimately, the Supreme Court reversed the 7th Circuit's opinion on the fetal remains law, upholding the state's interest in mandating the proper disposal of aborted baby bodies. The justices did not weigh in on the non-discrimination policy, however.
Last year, Barrett joined a dissent when the 7th Circuit denied a rehearing in a case concerning another Indiana law. The court ruled that a law required young women to notify their parents before obtaining an abortion was unconstitutional. When the court refused to rehear the case, Barrett joined a dissent arguing that "[p]reventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure."
The Supreme Court later sent that case back to the lower courts in light of the ruling in June Medical Services v. Russo, which struck down a Louisiana law that requires abortionists to obtain admitting privileges at nearby hospitals.
Interestingly, Barrett's abortion rulings have not always favored the pro-life side. Last year, she joined an opinion that upheld a Chicago ordinance barring pro-life sidewalk counselors from approaching women entering an abortion clinic. While Barrett likely sympathized with the sidewalk counselors, she upheld the law restraining them — putting the law ahead of her personal beliefs.
4. Other key cases Barrett's rulings in two other cases stand out.
In Kanter v. Barr (2019), she dissented when the 7th Circuit upheld the denial of gun rights from a convicted felon. The majority upheld the law denying Second Amendment rights to felons. Barrett dissented.
"Under federal law, those who've been convicted of a felony, any felony, lose their gun rights, so they can't possess a gun thereafter," Barrett explained. "So Kanter argued that he wasn't a threat. This was his only conviction. It wasn't a violent crime."
She claimed it was unconstitutional to deny the man his Second Amendment rights. She did "a pretty deep dive into the history of the Second Amendment," following the Supreme Court precedent in District of Columbia v. Heller (2008).
"That sounds kind of radical, to say felons can have firearms," Barrett admitted. "But I think it's because what the longstanding prohibitions were, and in fact, had been, even under federal law until more recently, was that violent felons couldn't have firearms. … What the history showed me was that there's been a longstanding practice of saying that those who pose a threat of violence to the community cannot have firearms."
"Under federal law, those who've been convicted of a felony, any felony, lose their gun rights, so they can't possess a gun thereafter," Barrett explained. "So Kanter argued that he wasn't a threat. This was his only conviction. It wasn't a violent crime."
She claimed it was unconstitutional to deny the man his Second Amendment rights. She did "a pretty deep dive into the history of the Second Amendment," following the Supreme Court precedent in District of Columbia v. Heller (2008).
"That sounds kind of radical, to say felons can have firearms," Barrett admitted. "But I think it's because what the longstanding prohibitions were, and in fact, had been, even under federal law until more recently, was that violent felons couldn't have firearms. … What the history showed me was that there's been a longstanding practice of saying that those who pose a threat of violence to the community cannot have firearms."
Barrett also stood up for due process rights in a college Title IX sexual assault case. In Doe v. Purdue University (2019), she wrote for a three-judge panel that reinstituted an anonymous male student's lawsuit against Purdue University. The student claimed that the university violated his due process rights and that its determination of his guilt had led to his expulsion from the Navy ROTC program, the loss of his scholarship, and the end of his plans to join the Navy.
The court ruled that he should be allowed to pursue his claim against Purdue. "Purdue's process fell short of what even a high school must provide to a student facing a days-long suspension," Barrett wrote.
5. "The dogma lives loudly" During Barrett's confirmation hearing for the 7th Circuit Court of Appeals, Sen. Dianne Feinstein (D-Calif.) notoriously imposed something of a religious test. "The dogma lives loudly within you," Feinstein said, suggesting that Barrett's religious convictions disqualified her from service on the federal bench.
After Ginsburg's death, some on the Left have rushed to demonize Barrett. Washington Post book critic Ray Charles suggested that there was something nefarious to Barrett's statement that she intends to pursue "the kingdom of God." On the contrary, the "kingdom of God" is a common Christian phrase that has more to do with loving your neighbor as yourself than bringing about some kind of theocracy.
Similarly, Newsweek ran a story claiming that Barrett belonged to a secret cult-like organization that inspired Margaret Atwood's book The Handmaid's Tale. In truth, the pentecostal group to which Barrett belonged, People of Praise, had no connection with People of Hope, the group Atwood seized upon. Newsweek corrected the story but did not retract it.
If Trump nominates Barrett on Saturday, expect similarly baseless attacks on this nominee. --------------------Tyler O'Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.
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