Who would not be impressed by an attractive, articulate, 48-year-old mother of seven (two of them are adopted from Haiti, and one has Down Syndrome) who rises at 4:00 am to work out before beginning a long, grueling day with a 90-minute drive from South Bend, Indiana to Chicago, where she sits as a justice on the 7th Circuit Court of Appeals?
That is one picture that has been painted of Amy Coney Barrett: beloved law professor at Notre Dame for 15 years, who would always go that extra mile for her students and who still finds time to teach part-time. While Barrett is certainly intellectually qualified to serve on the Supreme Court, her work on the 7th Circuit Court of Appeals as well as her writing and commentary have placed her in the midst of fervent opposition from the left and equally ardent support from the right.
Just who is Amy Coney Barrett? When one explores her judicial positioning in her writing and her (somewhat limited) judicial opinions in her three years of court experience, a somewhat different picture unfolds than that of the idyllic mother surrounded by her adoring children and students. Depending on your own positioning—right or left—Barrett may or may not be the ideal successor to the liberal Ruth Bader Ginsburg.
Barrett closely identifies with her mentor, the late Justice Antonin Scalia, whom she clerked with. Scalia was the main proponent of the idea of originalism, meaning that the Constitution should be interpreted by the courts as it was originally intended by the Founders. But Scalia also was an adherent of precedent, sometimes even when it conflicted with what the Founding Fathers might have intended when they ratified the Constitution. With Barrett, Scalia may have created an originalist, but her views on precedence align more with Justice Clarence Thomas, who does not hold it in high regard. Together, these two views make for an uncomfortable mix when it comes to some of the issues that will be heard in the Supreme Court.
According to Nan Aron, president of the Alliance for Justice, there were two issues in particular that President Trump said were “qualifications” for his Supreme Court nominees. They must be “opposed to Roe v. Wade,” and “the candidate has to, like Trump, do whatever she can to overturn the Affordable Care Act.” Barrett, according to Aron and others on the left, fulfills and exceeds these criteria.
With only three years on the federal bench and limited courtroom experience to judge from, how does one understand the judicial leanings and temperament of Judge Amy Coney Barrett? In an interview in Slate, Mary Harris posed these kinds of questions to Mark Joseph Stern, with some most revealing answers. Starting with her positions on the Affordable Care Act (ACA), Stern points out that she “trashed” Chief Justice John Roberts’ 2012 opinion that upheld the law and the individual mandate, saying he had stretched the text beyond any plausible interpretation so he could save the law. Knowing that the Supreme Court will hear a case in early November (one week after the election) that is looking to eradicate the entire ACA, there is no question where she will stand on this issue. For Stern, he sees this as a great strategy to use the Supreme Court to do away with something that Republicans have not been able to do legislatively. Amy Coney Barrett is the final piece in the downfall of the ACA.
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The same kind of strategic planning comes into play around abortion. On the 7th Circuit, Barrett dissented in an abortion case involving an Indiana law barring abortions based on fetal disability or gender. While they did not decide the case, their view referred to it as an “anti-eugenics law” that should be upheld by the Supreme Court. In another case, she voted to reinstate an Indiana law that would require minors seeking an abortion to notify their parents before the procedure even if a judge had heard the case and ruled she was mature enough to make this decision without parental consent. In two different cases, in a short period of time, as well as in her speeches and writing before joining the 7th Circuit, Barrett’s positions on reproductive choice is clear. And Mark Joseph Stern opines that the plan has always been that a woman will be the decisive vote that overturns Roe v. Wade.
According to Stephen Vladeck, a University of Texas law Professor, Barrett’s confirmation will transform the court into the most conservative one since the 1930s, with an extremely aggressive conservative agenda.
“When it comes to big picture cases, running the spectrum from abortion to religion to campaign finance to everything, there is no longer going to be…any concern about a squishy median when you have six solid conservatives from which to find five” justices to form a majority, Vladeck says.
And as we look at what the judicial temperament of Amy Coney Barrett brings to the Supreme Court, there are those who rejoice and those who recoil. When questioned about this, Mark Joseph Stern was forthright in his answer:
Basically, almost any time someone who is powerless or weak or a minority or is relying on the federal judiciary to protect their rights goes before Amy Coney Barrett, she rules against them. It’s a very, very, very clear pattern here. Prisoners who were subject to disproportionate violence don’t get rights when Amy Coney Barrett is on their case. An immigrant who is about to be deported and is going to face torture at home, Amy Coney Barrett says deport them. Send them away. An older person who is applying for a job and likely turned away because of age discrimination, Amy Coney Barrett says, “Tough shit. You don’t have any rights here. You can just suffer.”
Amy Coney Barrett’s originalist reading of the Constitution, based on the writing of white male slaveowners, is one that contracts rights rather than expands them. For those who see the federal judiciary as a safeguard for all people, having Barrett sitting on the Supreme Court for the next 40 years (or more) does not portend well for the greater good.—Carole Levine