President Trump’s nomination of Judge Amy Coney Barrett to fill the Supreme Court seat made vacant by the death of Justice Ruth Bader Ginsburg is seen as a home run for conservatives. It is a chance to move the high court in a far more aggressively conservative direction for generations.
In political terms, Barrett is the dream candidate for conservative Republicans and the nightmare candidate for Democrats.
For Republicans, the 48-year-old is a young and personally unassailable nominee.
A devout Catholic, she is the mother of seven, including a child with Down syndrome and two children she and her husband, Jesse Barrett, adopted from Haiti. She is beloved in her community and by her students at Notre Dame Law School, where she taught for 15 years; she was voted best professor three times and still teaches part time at the school.
“If you talk to students, the thing that stands out to them is that she really makes an effort to get to know them, understand them, and help them,” says G. Marcus Cole, dean of the law school.
It’s more than that, though. Barrett is willing to go the extra mile when necessary — for instance, going to bat for Laura Wolk, a blind student who upon entering the law school, found the school computer software didn’t allow her to access law books and other legal material in a format she needed to read for her classes. As Wolk recounts, when she told Barrett about it, Barrett replied, “This is one I absolutely can take off your plate.”
And she did, getting the law school to quickly purchase the needed software, says Wolk, who would go on to graduate second in her class and serve as a law clerk for Justice Clarence Thomas.
Barrett’s busy schedule and her many roles leave people in South Bend, Ind., scratching their heads and asking this question: How does she do it?
She starts most days at the gym at 4 a.m., according to friends. Because the appeals court she sits on meets in Chicago, she commutes regularly, driving 1 hour and 45 minutes to get there from South Bend.
Nobody seriously disputes Barrett’s sparkling intellect and qualifications to serve on the Supreme Court. Rather, it is her work on the 7th Circuit Court of Appeals and her scholarly writing and commentary that have drawn such fervent opposition from the left and support from the right.
It is the positions that she has taken over the years, from the anti-abortion, anti-gay-marriage letter from Catholic women that she signed in 2015, to her judicial decisions since then.
A sea change for the Supreme Court
Barrett has criticized the Supreme Court’s 5-4 and 6-3 decisions upholding key sections of Obamacare. Both were written by conservative Chief Justice John Roberts, but in a 2015 interview on NPR, Barrett opined that in her view “the dissenters had the better of the argument.”
In a lecture at Jacksonville University in 2016 just days before the election, Barrett warned that if Hillary Clinton were elected, the court would experience a “sea change” in ideology. But as Nan Aron, president of the liberal Alliance for Justice puts it, it is Barrett’s ideology that now presents a potential sea change.
Aron says President Trump has “made clear his two qualifications” for a Supreme Court justice: She must be “opposed to Roe v. Wade,” and “the candidate has to, like Trump, do whatever she can to overturn the Affordable Care Act.” Aron, and others, contend that Barrett’s record fits the bill on both counts, and much more.
Barrett, in her Jacksonville lecture, said she expected that the Supreme Court’s Roe v. Wade decision would be hollowed out, but not reversed.
“I think the question is how much freedom the court is willing to let states have in regulating abortion,” she said.
Just months after that speech, Barrett was named to the 7th Circuit, where she dissented in an abortion case involving an Indiana law barring abortions based on fetal disability or gender. While the dissenters technically did not decide the issue, they made clear their view that what they referred to as an “anti-eugenics law” should be upheld by the Supreme Court. Had that view prevailed, it would have been illegal to get an abortion in Indiana because of fetal disability.
A potential vote to overturn crucial cases
Now, in 2020, if she is confirmed, Barrett would likely be a sixth conservative vote on the court, making it plausible that there will be a majority to overturn Roe v. Wade outright.
University of Texas law professor Stephen Vladeck says he expects that with Barrett’s confirmation, the court would be transformed into the most conservative court since the 1930s, a court that is much more aggressive in its 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 said.
Barrett closely identifies with the justice she once clerked for, the late Antonin Scalia, who more than any other justice popularized the idea of originalism, meaning that the court should interpret the Constitution as it was originally intended by the Founders. But Scalia, at the same time, often referred to himself as a “faint-hearted originalist” because he also embraced one of the other building blocks of legal interpretation, namely, adhering to precedent, even when, in his view, some of those precedents conflicted with what the Founding Fathers thought when they ratified the Constitution.
Judge Barrett’s views on precedent, however, appear to be closer to those of Justice Clarence Thomas, who has little regard for precedent and has urged overturning many long-established decisions.
Barrett’s critics, for instance, point to her judicial writing in a major gun case. In 2008, the Supreme Court ruled for the first time that the Constitution guarantees the right to own a gun. But Justice Scalia, writing for the court, listed some exceptions, among them laws barring felons from owning guns. When one of those felon laws came before Judge Barrett, she dissented, maintaining that the Supreme Court didn’t really mean to exclude gun ownership for felons who aren’t dangerous.