Judge Amy Coney Barrett has only been a judge for three years, but she’s already developed a robust record on politically divisive issues - including abortion, immigration, and gun rights.
President Donald Trump announced Barrett as his nominee to fill the late justice Ruth Bader Ginsburg’s seat on Saturday, just over a week after Ginsburg died of pancreatic cancer. Barrett was confirmed to the US Court of Appeals for the 7th Circuit in late 2017, following a career largely spent as a law school academic.
Barrett brings less experience as a judge than Trump’s prior two Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, who each spent more than a decade as lower court judges. Still, her opinions, dissents, and the decisions she’s joined written by her colleagues shed light on her legal philosophy. According to the 7th Circuit’s online database of decisions, she’s written 97 majority opinions, six dissents, and four concurring opinions. Her writing style is clear, and she isn’t known for rhetorical flourishes or snark.
Barrett’s views on abortion are likely to feature prominently in the confirmation fight. She was on record as being against abortion before she became a judge, and on the 7th Circuit, she has sided with states trying to impose restrictions on the procedure. Democrats and reproductive rights advocates warn that replacing Ginsburg - a reliable vote for protecting reproductive health - with Barrett would empower the court to revisit abortion rights laid out by the court in 1973 in Roe v. Wade and a line of decisions that came after.
Barrett has a consistent record of siding with fellow Republican appointees on abortion and other politically divisive issues, with some exceptions - in a gun rights case, for instance, she took an even more expansive view of the reach of the Second Amendment than the two Ronald Reagan appointees who were also on the panel. In an immigration case, she joined two of her more liberal-leaning colleagues not only in reviving a Mexican man’s challenge to a deportation order, but also rejecting a legal opinion by former attorney general Jeff Sessions that limited the power of US immigration courts to close pending cases.
With the election less than six weeks away, one area of the law of intense interest for both Democrats and Republicans is how much state and local officials can expand opportunities for mail-in and absentee voting during the coronavirus pandemic. Barrett hasn’t participated in a case about that to date.
Before becoming a judge, Barrett was a law professor at Notre Dame Law School, a post that gave her more freedom to talk about her personal beliefs; federal judges are bound by a code of conduct that prevents them from publicly expressing views about issues that might end up in court. She spoke about her opposition to abortion and was a member of University Faculty for Life at Notre Dame.
Barrett hasn’t written opinions or dissents about abortion since becoming a judge, but she has participated in cases that offer insight into how she’d approach the issue as a Supreme Court justice.
One such case involved two Indiana laws, one that required abortion providers to bury or cremate fetal remains and another that banned abortions based on the race, sex, or disability of the fetus. In April 2018, a three-judge 7th Circuit panel that didn’t include Barrett blocked both laws from going into effect. Indiana asked the full 7th Circuit to reconsider the ruling on the fetal remains disposal law.
In an order issued a few months later, the 7th Circuit judges split on whether to take the case en banc, which meant the original decision stood. Barrett voted in favor of reconsidering the panel’s ruling against Indiana. She joined a dissent written by Judge Frank Easterbrook that not only questioned the decision to strike down the restrictions on disposing of fetal remains, but also the injunction that blocked Indiana from banning abortion due to race, sex, or disability, which the state hadn’t asked the full court to hear.
Another case Barrett participated in involved another Indiana law that requires pregnant teenagers to get permission from a parent or guardian to have an abortion. Pregnant teens can petition a judge to bypass parental consent, and in August 2019, a three-judge 7th Circuit panel ruled that Indiana could not enforce a law requiring a teen’s parents or guardians to be notified if they went to court to petition a judge. A few months later, a majority of the 7th Circuit judges voted against reconsidering that decision.
Barrett was one of the judges who voted in favor of granting Indiana’s request to reargue the case before the full court. She didn’t write a statement explaining that vote but joined a one-paragraph dissent written by Judge Michael Kanne. Kanne wrote that because Indiana’s parental notification law hadn’t taken effect yet, the case raised important questions about a court’s authority to block it.
Trump’s executive orders restricting immigration from majority-Muslim nations was the first big Supreme Court fight for his administration, and his attempts at enforcing hardline immigration policies have frequently landed in court. Barrett has a mixed record when it comes to analyzing the administration’s immigration policies.
In one of the few cases where Barrett has written about high-level actions taken by the Trump administration, as opposed to individual immigration cases, she sided with the government’s decision to expand the “public charge” rule to deny permanent residency to immigrants that officials deemed likely to use public benefits.
On June 10, the 7th Circuit ruled 2–1 to uphold an injunction that blocked the expanded “public charge” rule. The two judges in the majority wrote that the Department of Homeland Security had gone too far in expanding the rule to cover immigrants who might use temporary or minimal government assistance. The term “public charge,” Chief Judge Diane Wood wrote, “requires a degree of dependence that goes beyond temporary receipt of supplemental in-kind benefits from any type of public agency.”
Barrett dissented. Delving into the historical record, she wrote that when the term “public charge” became part of federal immigration law in the late 19th century, it wasn’t clear how much government assistance it was referring to. When Congress updated immigration laws in 1996, she wrote that lawmakers added restrictions that gave the rule more “bite” and made clear that it applied to smaller amounts of government aid.
The challengers and House Democrats had argued that because Congress made welfare benefits available to green card holders, it didn’t make sense to deny permanent residency to immigrants who might use those benefits in the future. Barrett disagreed.
“A lawful permanent resident who falls on hard times can rely on public assistance to get back on her feet. Congress’s willingness to authorize funds to help immigrants who encounter unexpected trouble is perfectly consistent with its reluctance to admit immigrants whose need for help is predictable upon arrival,” Barrett wrote.
In January 2019, Barrett wrote a 2–1 opinion upholding the Trump administration’s decision to deny a visa to the spouse of a naturalized US citizen based on a finding that the spouse was involved in trying to smuggle children into the United States. The couple argued and presented evidence that the children were in fact their children and also that the children had drowned. Barrett agreed with a lower court judge who had dismissed the case on the grounds that courts can’t second-guess decisions by consular officers.
The judge who dissented wrote that Barrett’s interpretation “sweeps more broadly than required by the Supreme Court and our own precedent” and deprived the US citizen husband “of an important constitutional right.” In May 2019, the full court voted against reconsidering Barrett’s opinion, and she defended her decision against criticism from her dissenting colleagues that she’d empowered consular officers with “unfettered authority” to reject visas.
In an immigration case decided in June, Barrett found herself on the same side as two of her more liberal-leaning colleagues. She wrote an opinion not only reviving a deportation challenge but also disagreeing with a legal opinion issued in 2018 by Sessions that restricted the power of immigration judges to administratively close cases, a procedure that puts removal cases on hold.
Qualified immunity, a legal doctrine that allows police to claim immunity against lawsuits accusing them of excessive force and other misconduct, faced new scrutiny this year after the deaths of George Floyd, Breonna Taylor, and other Black people during encounters with law enforcement officers. Federal courts have reached different conclusions over the years about how to apply the doctrine, but the Supreme Court has declined to take up the issue to set nationwide standards.
In August 2019, Barrett wrote an opinion upholding qualified immunity for Chicago police officers sued over a car stop involving three Black men who argued the officers lacked reasonable suspicion to pull them over. The officers were investigating a shooting and received dispatches that identified the suspects as three Black men in a gray car. The descriptions didn’t match the car that the officers pulled over, but Barrett wrote that “reasonable suspicion can exist without an exact match.” The judge also wrote that officers could be entitled to immunity even if they said they didn’t remember the stop and there was no official report about it, based on other evidence showing what they knew at the time.
In January 2019, Barrett wrote an opinion denying qualified immunity to a detective who made false statements in a sworn affidavit as part of a murder investigation. The detective’s lies were “material” to the case, Barrett wrote, and the “unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer.”
In a lawsuit challenging prison discipline tactics, Barrett sided with law enforcement.
In July 2019, the 7th Circuit ruled 2-1 in favor of reviving the lawsuit filed by two inmates at an Illinois jail who were hit by buckshot fired by prison guards in response to a fight between other inmates in the dining hall. The inmates argued the guards used unconstitutional excessive force (the case didn’t involve qualified immunity). The two judges in the majority found the record wasn’t clear on key issues - such as whether the fight was over when the guards fired their shotguns, where exactly they aimed the warning shots, and why they fired into the crowd or the ceiling instead of a dedicated “shot box” - so the case should go to a jury.
Barrett dissented. She wrote that there was no evidence the guards intentionally hit the inmates, so the inmates couldn’t meet a standard that the Supreme Court had laid out for cases challenging prison discipline - that the guards acted “maliciously and sadistically.” She criticized her colleagues, writing that they had tried to “assist” the inmates by suggesting possible theories for how the guards intended to hit the inmates that weren’t supported by the evidence.
It’s been a decade since the Supreme Court heard a major case involving the Second Amendment and the rights of Americans to keep and carry guns. Kavanaugh, Gorsuch, and Justices Clarence Thomas and Samuel Alito Jr. made clear during the court’s last term that they think it’s time to revisit the issue.
In a March 2019 decision, Barrett wrote that she shared the concern of other conservative judges and gun rights advocates that the Second Amendment was being treated as a “second-class” right.
The 7th Circuit had ruled 2–1 to reject a Second Amendment challenge to federal and Wisconsin laws that ban people convicted of most felony crimes from owning or possessing a firearm. The man who sued had pleaded guilty to one count of mail fraud, for which he was sentenced to one year and one day in prison, which meant he fell under the firearms ban. He argued that the federal and state bans shouldn’t apply to nonviolent offenders with no other criminal record.
The two judges in majority found that the government had shown that preventing nonviolent former felons from having guns was “substantially related to its interest in preventing gun violence.” They cited studies showing rates of violent crime committed by people who previously were convicted of nonviolent crimes.
Barrett dissented, writing in favor of expanding the Second Amendment’s gun rights protections to certain nonviolent ex-offenders. She drew a line between restricting former felons from exercising “civic rights” - such as voting and serving on a jury - and restricting “individual rights” such as owning a gun. Allowing the government to ban all former felons from owning a gun without proof that a person presented a risk to public safety treated the Second Amendment as a “second-class right,” Barrett wrote.
“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous,” she wrote.
Barrett’s nomination now heads to the Senate, where the Judiciary Committee will hold at least one hearing considering her qualifications. Senate Majority Leader Mitch McConnell has said that the Senate will vote this year on her nomination, though it is unclear whether that vote will come before or after Election Day. Republicans have said they will vote on the nomination regardless of whether Trump wins the election.