By Rev. Ben Johnson*
Amy Coney Barrett’s record of judicial rulings and legal writings shows that she holds an originalist view of the Constitution, and it provides a glimpse into her opinions on such diverse issues as religious liberty, national healthcare, environmental regulations, the right to life, and the Second Amendment. Here are the facts about the woman who could replace replace Justice Ruth Bader Ginsburg on the Supreme Court.
Amy Coney Barrett was born to Michael and Linda Coney on January 28, 1972, in New Orleans, where she attended St. Mary’s Dominican High School. Barrett earned a bachelor’s degree in English literature from Rhodes College in 1994 and a juris doctorate from Notre Dame Law School, where she served as executive editor of the law review and finished first in her class. She clerked for Reagan-appointed D.C. Appeals Court Judge Laurence H. Silberman in 1998-1999 and the following year for Supreme Court Justice Antonin Scalia, whom she calls “my mentor.” Barrett went into private practice for two years, then taught for one year at George Washington University School of Law. Since 2002 she has taught at Notre Dame Law School, winning “Distinguished Professor of the Year” three times and serving as a member of the university’s “Faculty for Life” group.
She and husband, Jesse, have seven children: Emma, Tess, Vivian, John Peter, Liam, Juliet, and Benjamin. The family adopted Vivian, who suffered such severe malnutrition that doctors thought she would never walk, and John Peter from Haiti. Benjamin – “his brothers and sisters unreservedly identify him as their favorite sibling,” Barrett said on Saturday – was born with Down syndrome. Barrett commutes nearly 100 miles from her home in South Bend, Indiana, to Chicago
President Donald Trump appointed Barrett to the Chicago-based U.S. Court of Appeals for the Seventh Circuit May 8, 2017. During the confirmation hearings, Sen. Dianne Feinstein of California and Dick Durbin of Illinois interrogated Barrett over her religious views, asking for her definition of an “orthodox Catholic” and proclaiming, “The dogma lives loudly in you.” The full Senate confirmed Barrett by a 55-43 vote on October 31, 2017. She has commuted 100 miles to the court from her home in South Bend, Indiana, ever since. Barrett had been a frontrunner for the Supreme Court seat left vacant by Justice Anthony Kennedy, but President Trump ultimately selected Justice Brett Kavanaugh to fill the position. (“I’m saving her for Ginsburg,” Trump reportedly said in 2019.) If confirmed, she will be the first mother of school-aged children to serve on the court, as well as being the youngest justice on the current Court and the only one to have earned her law degree somewhere other than Harvard or Yale.
Views on major issues
Barrett’s two-year tenure on a federal appeals court, as well as her publications, furnish evidence about her positions on certain key issues, including:
Affordable Care Act: Few recent Supreme Court decisions have stirred as much controversy as the justices’ decision to affirm the Patient Protection and Affordable Care Act, conventionally known as Obamacare. Barrett critiqued Chief Justice John Roberts’ last-minute change of position on NFIB v. Sebelius in her review of Randy Barnett’s Our Republican Constitution. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did – as a penalty – he would have had to invalidate the statute as lying beyond Congress’s commerce power.” Barrett classified this act of jurisprudential transubstantiation as another example of “Roberts’ devotion to constitutional avoidance.” Barrett’s opponents now warn that her low view of Roberts’ reasoning assures that, if she is confirmed, “millions of families’ health care will be ripped away in the middle of a pandemic.”
Religious liberty: Amy Coney Barrett holds a robust view of the First Amendment’s free exercise clause. Barrett joined a ruling that recognizes religious liberty as an inherent and preeminent right under the First Amendment. Barrett was part of a three-judge panel in Illinois Republican Party v. Pritzker (2020), which stated Democratic Illinois Gov. J.B. Pritzker did not have to grant the state Republican Party the same right to gather in larger numbers during the lockdown that churches enjoyed. “There can be no doubt that the First Amendment singles out the free exercise of religion for special treatment,” the opinion held. “Free exercise of religion enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities.” In addition to speaking before the pro-religious liberty Alliance Defending Freedom, Barrett has signed a 2012 statement saying the Obama administration’s accommodation to its HHS mandate is exceedingly narrow and “fails to remove the assault on individual liberty and the rights of conscience.”
Original intent: Amy Coney Barrett seems to share Justice Antonin Scalia’s jurisprudence, which establishes the meaning of the Constitution based or the original intent of the Founding Fathers. “Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law,” she wrote. “[A]n originalist submits to the precise compromise reflected in the text of the Constitution. That is how judges approach legal text, and the Constitution is no exception.” She has criticized a “spurious” form of textualism, known as literalism, which holds that the words of the Constitution or the law may be reinterpreted apart from establishing its defining context. “For an originalist, by contrast, the historical meaning of the text is a hard constraint.” She has applied this approach in a well-researched ruling on the Second Amendment. (See below.)
“I have rejected throughout my entire career the proposition that, as you say, the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome,” she said in her 2017 confirmation hearings.
Due process of the law: Amy Coney Barrett criticized opaque campus proceedings that deny the accused due process of the law. In John Doe v. Purdue University (2019), she ruled in favor of a male student found guilty of sexually assaulting a female student, despite the fact that the board never interviewed the alleged victim, the accused could not see the evidence against him, he had no ability to call an eyewitness who denied the allegation, and he could not introduce evidence about his accuser’s mental health issues. The university found him guilty using a “preponderance of the evidence standard” promoted by the Obama administration in 2011. Education Secretary Betsy DeVos formally codified students’ rights to due process in a set of Title IX regulations rolled out in May.
Abortion: Although Amy Coney Barrett has said “it is very unlikely at this point that the court is going to overturn” Roe v. Wade, she refrained from classing the landmark 1973 case among “so-called superprecedents” which “no justice would overrule, even if she disagrees with [their] interpretive premises.” Barrett would have granted a hearing on two pro-life laws signed by then-Gov. Mike Pence, one of which barred abortions based on race, sex, or disability, indicating she likely would have supported them. “Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered,” said the three-judge dissent, which Barrett joined. “None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
Barrett upheld a Chicago city ordinance banning pro-life sidewalk counselors from coming closer than eight feet to any woman who is within 50 feet of an abortion facility’s door. The unanimous opinion noted that the U.S. Supreme Court had affirmed the existence of speech ban zones in Hill v. Colorado (2000).
Theocracy: Opponents have painted Amy Coney Barrett as a closet advocate of theocracy over a 2006 speech she gave at Notre Dame Law School, which said that “legal career is but a means to an end … and that end is building the kingdom of God.” Both the speech’s text and her record make clear that she merely advised Christians to dedicate all their work to God, not to impose their faith by judicial decree – a notion she finds noxious. “Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge,” Barrett wrote in a 1998 Notre Dame’s Law Review article titled “Catholic Judges in Capital Cases.” When Sen. Dick Durbin, D-Ill, asked her, “Do you consider yourself an orthodox Catholic?” Barrett replied, “I am a faithful Catholic, I am – although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.” She added, “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law.”
Second Amendment: Barrett has upheld the Supreme Court’s ruling that the Second Amendment grants an individual, rather than a corporate, right to keep and bear arms. Her clearest statement came in her dissent to a three-judge panel decision in Kanter v. Barr (2019). The case investigated whether Congress had the “power to strip certain groups” like nonviolent felons of the right to keep and bear arms. “To be sure, under this theory such a person could possess a gun as a matter of legislative grace,” she wrote. “That is an unusual way of thinking about rights.”
Barrett displayed her commitment to originalism in an opinion that masterfully explored the original intent of the Founding Fathers, delving deeply into state gun legislation in the early republic. Barrett concluded the state’s right to deprive someone of the right to keep and bear arms “extends only to people who are dangerous,” not to all felons. “The Second Amendment confers an individual right, intimately connected with the natural right of self-defense,” echoing the Supreme Court’s ruling in D.C. v. Heller (2008). She also underscored the importance of gun rights in a majority opinion she wrote concerning proper arrest protocol. She overturned the conviction of a felon arrested for illegal possession of a firearm, because the anonymous tip that led to his apprehension did not assert evidence of violence or the threat of danger.
Private property and environmental regulations: Amy Coney Barrett has pared back federal overreach on environmental ordinances. She joined the 2018 Orchard Hill Building Co. v. United States Army Corps of Engineers ruling, which denied the Army Corps of Engineers’ attempt to classify a 13-acre tract of land as a wetlands area, even though the closest body of water is 11 miles away. The ruling expressed frustration with the sloth-like pace of litigation, noting, “This dispute has consumed almost as many years as the Warmke wetlands have acres.”
Constitutional separation of powers, emergency powers, and suspending habeas corpus: Amy Coney Barrett has written in a 2014 article that Congress has been too willing to delegate emergency powers to the president, including the right to suspend habeas corpus. Congress “has delegated broad authority to the [p]resident, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power,” she wrote. In some case, legislators had granted the president these powers “before an invasion or rebellion actually occurred and in some instances, before one was even on the horizon.” While Congress can delegate these powers, the Constitution “does require Congress to decide the most significant constitutional predicates for itself” unless “an invasion or rebellion has occurred.”
Her track record of decision, judicial writing, and an uplifting personal story have convinced constitutionalists that Barrett’s appointment will ease the Supreme Court away from its role as a nine-person rotating legislature.
“Amy Coney Barrett will decide cases based on the text of the Constitution as written,” said President Donald Trump when he nominated her on Saturday. “You are not there to decide cases as you may prefer you are there to do your duty, and to follow the law, wherever it may take you. That is exactly what Judge Barrett will do on the U.S. Supreme Court.”
Legal advocates agree that “ACB” will serve the nation well. “Amy Coney Barrett is the right choice for the U.S. Supreme Court, because she applies the intent and text of the Constitution to the statutes she reviews,” said Mat Staver, founder and chairman of Liberty Counsel. “A judge should be a neutral interpreter of the Constitution who knows what it means to interpret and apply the law, rather than an activist legislator who tries to create the law.”
*About the author: Rev. Ben Johnson is Executive Editor of the Acton Institute’s flagship journal Religion & Liberty and edits its transatlantic website.
Source: This article was published by the Acton Institute