**** This is a repost from the author. This piece was first circulated in another publication on September 26, 2020 ****
The name on everybody’s lips lately has been Amy Coney Barrett. Everyone wants to know who she is- what she’s done- who her friends and enemies are and (most importantly) what she is going to do if/when she is confirmed to the Supreme Court. In the last 24 hours, the media has been filled with rumour and counter-rumour over “who is Amy Coney Barrett?”.
The passing of civil rights icon and United States Supreme Court Justice Ruth Bader Ginsburg last week, likely took many by surprise. While the Justice was 87 years old and had some health problems, she had beaten the odds many times before- defeating several bouts of cancer and a serious fall that broke 3 ribs in 2018. At 85, when Justice Ginsburg made the proclamation that she intended to serve until 90 (at least)- and maybe some more after that- there was serious reason not to doubt her.
While Ginsburg continues to lie in repose at the Supreme Court building in Washington, the question on everyone’s mind is- who will succeed her? What man or woman will take Justice Ginsburg’s long held spot. The answer, announced yesterday, is: Amy Coney Barrett.
Judge Barrett’s background and her beliefs on the law have been a topic for grand speculation. If one was to believe what was written about her on the web- one might come to the conclusion that she is either a serene working-woman at the top of her legal game or a religious super-zealot determined to bring back witch burnings and arranged marriages.
This article will give you the facts from primary sources on Judge Barret’s record.
- Amy Coney Barrett graduated from Notre Dame Law in the early 1990s
- She married a fellow Notre Dame Law grad and has 7 children
- She is a law professor at her legal alma mater
- In 2017, President Trump appointed her to the Seventh Circuit Court of Appeals
- In her early legal career, Barrett served as a clerk to Justice Antonin Scalia
- Barrett has been on Trump’s shortlist for the Supreme Court since 2015
“Why is President Trump picking this woman now- didn’t he pass over her when Justice Kennedy retired?”
This is partially true. Coney, along with Joan Larson- was a favourite to replace Justice Kennedy. However, as it has been widely reported- President Trump had some trepidation about appointing Barrett to the Supreme Court since she had only been on the court of appeals for about a year. This likely stemmed from a sense of frustration the right-wing of the Republican Party has expressed for years since Justices like John Paul Stephens and Warren Burger (appointed by Nixon) and Justice Anthony Kennedy (appointed by Reagan) were added to the court. Many conservative activists who urged these Justices’ appointment were regretful when- on key legal rulings- Stephens, Burger and Kennedy were perceived to side more with the Court’s liberal wing. Seeking to reassure conservatives that this mistake would not be repeated- the President favoured Brett Kavanaugh who was seen as having a more established conservative legal history
Now however, Judge Barrett has more experience. As Business Insider reported, sources close to the President confirm- President Trump has been saving this RBG’s seat for Judge Barrett.
“Wasn’t she critical of Roe V. Wade?”
This is partially true. Judge Barrett is believed to be critical of Roe V. Wade but she is not alone in that sentiment. Even Ruth Bader Ginsburg was critical of Roe. Substantively, as a judge on the court of appeals- Barrett has never encountered a case that handled abortion directly. During her confirmation hearing to the court of appeals she was asked by Democrat Senator Dianne Feinstein about an article she wrote that left Roe out of a list of “super-precedents”. (Super precedents for someone that didn’t waste 3 years in law-school like yours truely- are essentially precedents that are so bold/clear they no longer continue to be challenged). Senator Feinstein inquired about this lack of inclusion on the basis that (then) Professor Barrett may be signaling that she seeked to oppose Roe while on the court of appeals. Barrett clarified that she did not make the list. The list of “super-precedents” was in an article written by another legal academic who Barrett was responding to. The author of this article did not include Roe in their list of super-precedents and therefore it was not germane to Barrett’s response. Barrett completed her answer by making it very clear that as judge on a court of appeals, she would not have the power to overturn Roe even if she wanted to.
“Doesn’t she belong to a cult”
A recent string of accusations have been made at Barrett- insinuating or explicitly stating that Justice Barrett is a religious zealot belonging to an obscure religious group. Barrett is a Catholic- she belongs to the same religious denomination of Christianity that Nancy Pelosi, Mike Pence and John F Kennedy have practiced.
The accusation of obscurity arises from her membership in a group called People of Praise. This group is by the literal definition- obscure. It is a small nondenominational worship group in Indiana that most people out of Indiana and (likely) most people out of South Bend have not heard of. In structure and practice this group would remind one of the more well known BSF (Bible Study Fellowship).
Doctrinally, the group seems to focus on your typical christian family values. There is a little evidence to support the notion that People of Praise are a particularly political group. Their doctrine is common for similar bible study groups and the assertion of obscurity appears to only be true in regards to the group’s size- not their teachings.
“Is she opposed to Obamacare?”
Judge Barrett is a lifelong Republican- it is more likely than not that she opposes Obamacare. However, this is a mixed bag. Opposing Obamacare politically is one thing- opposing it from the law is another.
There was a strong backlash against Obamacare by conservatives and liberals alike on the Supreme Court. Both of the Justices appointed by President Obama ruled against Obamacare. With the exception of King V. Burwell, a 2017 case involving structural issues of the Affordable Care Act (wherein the Court ruled 6-3 in favor)- many of the cases involving Obamacare in recent years have involved 7-2 decisions against.
Considering the partial repeal of ACA by Congress with an amendment to the latest tax bill- there are not many more issues involving Obamacare to be settled by the Supreme Court. Even if Barrett joined the court and became Obamacare’s biggest opponent/supporter, it is not likely her vote would make a difference considering that most cases are decided by votes larger than 5-4 (the minimal amount of Justices usually required to make a ruling).
“Does she want to over-turn gay marriage?”
Justice Barrett has never advocated overturning Obergefell V. Hodges- the case that nationally legalized gay marriage. She has been accused of defending the dissenters in Obergefell but that brings a terrible lack of nuance to her actual statement. Justice Barrett, when speaking at the Public Policy Institute said- “[Chief Justice Roberts, in his dissent,] said, those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide…So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”
She is explaining the reasoning of the dissent from the Chief Justice. She is not making a value statement as to the legal validity of the ruling. For the audience, Barrett was trying to illuminate the idea that Chief Justice Roberts thought the issue should have been handled by the state legislatures rather than the Supreme Court. Barrett is not defending his opinion, she is explaining his reasoning to an audience.
It is important to note that the composition of the court has changed radically since the Obergefell ruling in 2015. One of the biggest dissenters to the case- Justice Scalia- has died and been replaced by Justice Neil Gorsuch who was extremely clear he has no intent of touching the issue of gay marriage again. Justice Anthonny Kennedy, the justice who was the swing vote in the case, has retired and been replaced by Justice Brett Kavanaugh who has made statements identical to Gorsuch’s.
Even with Justice Ginsburg’s death and imminent replacement by Barrett- the ability of any one Justice to over turn gay marriage is proposterous. Assuming the three Justices who voted in favor of gay marriage in 2015 still support gay marriage- and Justices Gorsuch and Kavanuagh are true to their word, gay marriage is safe America.
This is in addition to the principles of Stare Decisis in which the entire court adheres. (Stare Decisis is the legal principle that the Court tries not to turn over prior Court’s decisions).
If Justice Barrett’s record and statements are any indicator- she will not be the image either side wants to portray her as. She won’t be the great boogeyman that some liberals seek to depict her as and she won’t be the great conservative reformer reversing every recent landmark decision that is unpopular with some conservatives.
No matter what type of Justice Barrett ends up being- should be confirmed to the court- one thing is certain: her confirmation will be a fight you won’t want to miss.