| By Alexander Heller | (Published on September 26, 2020)
Pesident Trump announced last week that his nominee to fill the vacancy left by the death of Justice Ruth Bader Ginsburg would be a woman. According to early reports, Judge Amy Coney Barrett, a judge from the U.S. Court of Appeals for the Seventh Circuit, is seen as the favorite to replace Ginsburg. Recent reports have confirmed her selection.
At just 48 years old, Barrett is likely to be the youngest woman to be nominated to the Court as well as the second-youngest Justice to be nominated overall. Aside from the inevitable Senate battle that’s likely to ensue in the coming weeks, the Louisiana native has been seen as a rising star among many religious conservatives. Barrett’s exact influence on the Court remains to be seen. If confirmed, her presence would give conservatives a major win from a SCOTUS term marred by equally major losses on the high court. It will have an immeasurable influence for decades to come.
Life and career
Before her meteoric rise in the conservative world, Amy Coney Barrett was born in New Orleans, Louisiana in 1972. The oldest of seven, she attended St. Mary’s Dominican High School in 1990 and graduated magna cum laude at Rhodes College with a B.A. in English literature. She then studied at Notre Dame Law School where she served as an executive editor for Notre Dame Law Review and graduated first in her class in 1997.
After law school, she served as a law clerk for Judge Laurence Silberman from 1997 to 1998. Most notably, she clerked for Justice Antonin Scalia from 1998 to 1999. Because of her clerkship with Scalia, she became influenced by his originalist approach in constitutional law.
Between 1999 and 2001, she practiced law in D.C. until teaching at George Washington University. She later began to teach at her alma mater, Notre Dame, in 2002. It was here, between 2002 and 2016, where her scholarship focused on constitutional law, originalism, statutory interpretation, and stare decisis.
Eventually, Amy Coney Barrett was nominated by Donald Trump on October 5, 2017, to serve as United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit. She was confirmed 55–43 on October 31, 2017. She remains the first and so far only woman to hold an Indiana seat on the Seventh Circuit.
Much like Scalia, Barrett considers herself an originalist. She’s been an outspoken supporter of the Trump administration’s anti-immigration policies and a supporter for expansive gun rights. During her brief time on the Seventh Circuit, Barrett’s notable cases involved these aforementioned topics. She quickly garnered support from both conservatives and Trump.
In June 2020, Barrett issued a 40-page dissent that upheld a district court order blocking the Trump administration from enforcing the “public charge” rule. It bars noncitizens from receiving a green card if the government believes they are likely to rely on public assistance.
Amy Coney Barrett departed from her colleagues, who held that DHS’s interpretation of that provision was unreasonable under Chevron Step Two. Barrett would have held that the Trump administration’s new rule fell within the broad scope granted to the Executive by Congress through the Immigration and Nationality Act.
Even if the Seventh Circuit continued to rule against the Trump administration’s “public charge” rule, Barrett’s dissent would have eventually won out in the Supreme Court. In 2020, the court gave the Trump administration the go-ahead in administering their new rule.
In the case of Kanter v. Barr, Barrett dissented when the court upheld a law prohibiting convicted nonviolent felons from possessing firearms. In her dissent, Barrett argued that while the government has a legitimate interest in denying gun possession to felons convicted of violent crimes, there is no evidence that denying guns to nonviolent felons promotes this interest. She argued that the law violates the Second Amendment.
How Amy Coney Barrett Might Influence the Court
Immigration and Precedent
Judging by her work on the Seventh Circuit and her academic papers, it seems that Amy Coney Barrett’s rulings are more aligned towards Samuel Alito than most Justices on the Court. She has a tendency to be on the right of Alito when it comes to immigration, which isn’t saying much. This would put her somewhere between Alito and Clarence Thomas. If she is confirmed, she has the potential of being the second or third most conservative justice on the Court.
So what does that mean in the long run? It means a lot. Although she’s a fervent believer in precedents like Brown v. Board of Education, New York Times co. v. Sullivan, and Obergefell v. Hodges, controversies surrounding religious liberties will be upheld. The fates of Obamacare and abortion may be left in the dark.
Religious Liberties and Obamacare
It’s likely Barrett will follow in the footsteps of her mentor, Scalia, regarding religious liberties. She criticized the Obama administration for providing employees of religious institutions the option of obtaining birth control without having the religious institutions pay for it. With the Court becoming a staunch ally for religious liberty advocates, it’s almost guaranteed she’ll side with the conservatives on this issue.
In regards to Obamacare, she’s been openly critical of Chief Justice Roberts’s opinion solidifying the constitutionality of the Affordable Care Act (ACA). Barrett disapproved of Roberts’s defense regarding the individual mandate. She stated that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Although she hasn’t taken a central position on the ACA, it’s likely she’ll apply her statutory interpretation of the law and side with some of the conservatives who’ve repeatedly voted against it. This would give Trump, and many Republicans, the much-needed death blow to Obamacare once and for all.
The fate of Roe v. Wade, and abortion as a whole, is entirely up in the air at this point. If Barrett is confirmed, conservatives will have a 6-3 majority. Even if conservatives decide to end Roe, it’s very unlikely it will be overturned in the manner many abortion advocates think it will. Abortion is indeed here to stay, but access and funding towards certain procedures have been left undetermined.
Barrett herself has never ruled directly on a case pertaining to abortion. She did vote to rehear a successful challenge to Indiana’s parental notification law in 2019. She also voted to strike down another Indiana law requiring burial or cremation of fetal remains in 2018. Her position on abortion will likely be elaborated come her Judiciary Committee hearing.
Regardless, her possible confirmation will alter the course of American jurisprudence. We’ll see a Supreme Court further to the right on immigration, supportive of religious liberties, nixing universal health care, stringent on voting rights, and hard on abortion. If she is confirmed, the possibility of a conservative Warren Court will no longer be a dream for some. It will be the reality for many.
For more on this article, contact Alexander Heller on Twitter @AFXHeller