Amy Coney Barrett: Where Supreme Court pick has stood on key issues
WASHINGTON - Amy Coney Barrett is President Donald Trump’s pick to fill the Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg.
Barrett clerked for late Supreme Court Justice Antonin Scalia from 1998 to 1999. Before that, Barrett served as law clerk for Laurence Silberman for a year at the U.S. Court of Appeals for the District of Columbia Circuit. Between clerkships and entering academia, she worked from 1999 to 2001 at the Miller, Cassidy, Larroca & Lewin law firm in Washington, D.C.
The reliable conservative is known for her rulings on hot-button legal issues from abortion to gun control and is hailed by religious conservatives. But liberals say Barrett’s legal views are too heavily influenced by her religious beliefs and fear her ascent to the nation's highest court could lead to a scaling back of hard-fought abortion rights.
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If Barrett is confirmed and sworn in, she would be the youngest justice at just 48, with a tenure that could impact the country for decades to come.
So where does the judge stand on key issues facing the nation? Let her record speak for itself.
Leading up to the moment she first donned judge’s robes in 2017 after Trump nominated her to the Chicago-based 7th U.S. Circuit Court of Appeals, Barrett was asked in a White House questionnaire if it was her view that abortion was always immoral.
She didn’t answer the question directly, but said: “If I am confirmed (to the 7th Circuit), my views on this or any other question will have no bearing on the discharge of my duties as a judge.”
She once wrote a 2013 Texas Law Review article regarding whether or not the Supreme Court “overruling precedent affects the Court’s actual legitimacy.” Barrett listed fewer than 10 cases she said are widely considered “super-precedents,” ones that no justice would dare reverse even if they believed they were wrongly decided. Among them was Brown vs. Board of Education, which declared racial segregation in schools unconstitutional.
One she didn’t include on the list: Roe v. Wade, the 1973 landmark case that affirmed a woman’s right to abortion. Scholars don’t include it, she wrote, because public controversy swirling around it has never abated.
She wrote, “I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
Abortion and women's rights were the focus of a bruising 2017 confirmation process after Barrett's nomination to the 7th Circuit. Some pointed to Barrett's membership of the University of Notre Dame’s “Faculty for Life” group — and that she had signed a 2015 letter to Catholic bishops affirming the “value of human life from conception to natural death.”
A file image shows Amy Coney Barrett, U.S. Court of Appeals for the Seventh Circuit judge. (Photo credit: University of Notre Dame)
Sen. Dianne Feinstein told Barrett her views suggested religious tenets could guide her thinking on the law. The California Democrat said, “The conclusion one draws is that the dogma lives loudly within you.”
Barrett responded that her views had evolved and that she agreed judges shouldn’t “follow their personal convictions in the decision of a case, rather than what the law requires.”
Her nearly three-year stint as a judge has included at least one abortion-related case.
A 2018 ruling by a 7th Circuit panel declared unconstitutional an Indiana law requiring the burial of fetal remains after an abortion or miscarriage, and prohibiting clinics from treating the remains as waste. The law, signed by then-Gov. Mike Pence, also barred abortions on the basis on the race, sex or disabilities of the fetus.
Barrett joined three conservative judges in asking for the ruling to be tossed and for the full court to rehear the case. They didn’t have the votes to force a rehearing. But they issued a joint dissent on the rehearing decision, clearly suggesting they thought the Indiana law was constitutional.
The dissent, written by Judge Frank Easterbrook, argued that Indiana’s law would have been upheld “had it concerned the remains of cats or gerbils.”
The Supreme Court, in an unsigned opinion, later sided with Easterbrook, and by extension Barrett, to uphold the Indiana law on the fetal remains but denied to hear the question on the "eugenics statute" because no other circuit court had heard a case on such a law.
Barrett has long expressed favor for a mode of interpreting the Constitution, called originalism, in which justices try to decipher original meanings of texts in assessing if someone’s rights have been violated. Many liberals oppose the strict approach, saying it is too rigid and doesn't allow the Constitution to change with the times.
Barrett’s fondness for original texts was on display in a 2019 dissent in a gun-rights case in which she argued a person convicted of a nonviolent felony shouldn’t be automatically barred from owning a gun. All but a few pages of her 37-page dissent were devoted to the history of gun rules for convicted criminals in the 18th and 19th centuries.
Barrett has, for the most part, sided with the Trump administration on immigration cases. In Cook County v. Wolf, a case on the Trump administration's controversial "public charge" policy that allowed immigrants who were likely to use welfare to be barred from getting visas, Barrett said the rule was a "policy choice" that should not be resolved in litigation.
In Yafai v. Pompeo, Barrett backed a State Department decision to deny a visa to the wife of an American citizen for allegedly trying to smuggle in children, despite the fact that the parents said their children had died in a drowning accident. The decision was reconsidered but the wife was still not given a visa.
Barrett said that the fact the denial was reconsidered, under the law and Supreme Court precedent, fulfilled the legal requirements the State Department had to meet. In a decision on whether or not the full court should rehear the case, she said that the State Department was given significant discretion and that the appeals court could not require more evidence than a simple citation of what law the decision was made under.
"[A higher] standard may be desirable but imposing it would be inconsistent with Supreme Court precedent," Barrett wrote. "The Supreme Court has repeatedly held that a citation to a statutory provision suffices to show a legitimate and bona fide reason for denying a visa application. It is free to revisit that precedent, but we are not."
As a professor at Notre Dame Law School, Barrett co-authored a 1998 article called “Catholic Judges in Capital Cases,” in which she suggested that a Catholic judge recuse themselves from proceedings involving a death penalty case.
"Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously," she wrote along with John H. Garvey, who is now the president of the Catholic University of America in Washington, D.C.
"Judges cannot — nor should they try to — align our legal system with the Church's moral teaching whenever the two diverge," the article says. "They should, however, conform their own behavior to the Church's standard. Perhaps their good example will have some effect."
With recent police brutality protests erupting all across the nation, qualified immunity has been a topic of serious contention among the high court.
In June, the Supreme Court had turned away more than half a dozen cases involving the legal doctrine known as qualified immunity, which the high court created more than 50 years ago. It shields officials, including police, from lawsuits for money as a result for things they do in the course of their job.
In the 2019 case Rainsberger v. Benner, Barrett authored an opinion denying qualified immunity for Charles Benner a homicide detective who allegedly submitted a “probable cause affidavit that was riddled with lies and under cut by the omission of exculpatory evidence,” according to court documents.
William Rainsberger was charged with murdering his elderly mother but the case was dropped due to lack of evidence. Based on Benner’s affidavit, Rainsberger was imprisoned for two months.
Rainsberger sued Benner for violating his Fourth Amendment rights. Benner argued that he was entitled to qualified immunity, despite “knowingly or recklessly misleading the magistrate in a probable cause affidavit.”
"It would be flatly inconsistent with [the justification for qualified immunity] to imagine a competent officer considering the question whether a lie helpful to demonstrating probable cause is so helpful that he should not tell it," Barrett said in denying Benner qualified immunity. "That is neither a reasonable question to ask nor a reasonable mistake to make."
"The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer," Barrett wrote.
FOX News and the Associated Press contributed to this story. This story was reported from Los Angeles.