By Tessa Berenson – Time.com – Getty Images
President Donald Trump nominated Judge Amy Coney Barrett to the Supreme Court on Saturday evening, igniting what is set to be a titanic fight in the Senate over filling the seat left open after the death of Justice Ruth Bader Ginsburg, just weeks before Election Day.
With Barrett standing beside him in the Rose Garden, Trump called her a “woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution,” saying it was “a very proud moment” for him to nominate her to the Supreme Court.
Barrett was widely expected to be Trump’s pick. Trump had considered her to fill Justice Anthony Kennedy’s seat in 2018—he chose Brett Kavanaugh instead—and in recent days it became clear Barrett was the President’s top candidate after he promised he would nominate a woman to fill Ginsburg’s seat.
Barrett’s nomination is the opening salvo in a bitterly partisan battle to come over whether Trump will be able to confirm a third Supreme Court justice to the bench in the final weeks of his first term, cementing a 6-3 conservative majority on the nation’s highest court for a generation. Though widespread polling indicates most Americans think the winner of the 2020 election should nominate the next justice, Senate Majority Leader Mitch McConnell has vowed that Trump’s nominee will have a vote in the Senate, and only one GOP Senator– Susan Collins of Maine– has firmly declared that she doesn’t think there should be a vote before the election and wouldn’t support a nominee on that timeline.
Speaking after Trump, Barrett said the occasion was “rather overwhelming” and that she was “truly humbled” by the nomination. She promised to be “mindful of who came before me,” praising Ginsburg as a woman who “not only broke glass ceilings, she smashed them.” She also invoked the friendship of Ginsburg and her own mentor the late Justice Antonin Scalia, noting that they could “disagree fiercely in print, without rancor in person.”
“These two great Americans demonstrated that arguments, even about matters of great consequence, need not destroy affection,” she said.
Barrett is a staunchly conservative judge in the mold of Scalia, for whom she once clerked. Like Scalia, Barrett practices originalism, which interprets the Constitution according to the meaning of its framers, and textualism, which interprets laws based solely on the meaning of their words, without regard to legislative purpose.
Ideologically, she’d likely be near the far right of the bench. Though there are some stylistic differences with her late boss: “Her rhetoric would be much less combustible,” says Judge Laurence Silberman, for whom Barrett clerked on the District of Columbia Court of Appeals, but, he says, “I think she’d be most like Scalia.”
Whereas Scalia could write with a brutal and engaging flair, Barrett’s writing is precise and carefully reasoned. Although she isn’t a rhetorical bomb thrower, her decisions and published articles are self-assured. And while she has been a judge on the Seventh Circuit Court of Appeals for just three years after a career largely spent as a professor at Notre Dame Law School, her decisions during that time combined with her academic and legal publications from years prior have given her a paper trail on some controversial issues that offer some insight on where she might land on what will be some of the most important cases due to come before the court in the future.
With an Affordable Care Act case approaching the Supreme Court in the midst of a global pandemic in November, her past writings on President Barack Obama’s signature healthcare law are sure to inflame passions at her confirmation hearing. In a 2017 law review article, Barrett criticized Chief Justice John Roberts for his 2012 decision upholding a key provision of the Affordable Care Act: “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote. In other words: his decision wasn’t rooted in the kind of textualist interpretation she favors, which she indicates may not have led her to uphold the law. In a fundraising email sent the day before Trump officially nominated Barrett, progressive judicial advocacy group Demand Justice called her “anti-ACA Amy Coney Barrett” and said she can be “counted on” to “end the Affordable Care Act — kicking millions of Americans off their health care during a pandemic.”
Court-watchers and senators on both sides of the aisle have been particularly anxious to parse Barrett’s judicial philosophy on abortion, given that Trump has promised to nominate “pro-life” justices. Barrett is Catholic, and she became a star for Trump’s base after her contentious confirmation hearing to the Seventh Circuit in 2017 when Democratic Sen. Dianne Feinstein of California said “the dogma lives loudly within you” in a line of questioning about how Barrett’s faith affects her decisions.
In a 2016 talk, Barrett said the fundamental right to an abortion upheld in Roe v. Wade wasn’t likely to be overturned, but said states’ ability to regulate abortion might might allow for restrictions to be put in place. “I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that would change,” she said. In written answers to questions during her 2017 confirmation hearing, she acknowledged a previous article she co-authored in which she recounted the Catholic Church’s teaching that abortion is “always immoral,” but wrote, “If I am confirmed, my views on this or any other question will have no bearing on the discharge of my duties as a judge.”
In her time on the Seventh Circuit, Barrett has been involved in three abortion-related cases. In 2018, she joined a dissent from a ruling that held an Indiana law unconstitutional banning abortions for reasons of sex, race or disability of the fetus. While the appeals court was only asked to consider a ruling on part of the law about disposal of fetal remains, Barrett joined a dissent that said “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.” In 2019, after a panel ruled an Indiana law requiring parental consent for young women to obtain abortions was unconstitutional, Barrett joined a dissent saying she wanted the full Seventh Circuit to hear a challenge to the law. And the same year, she upheld a Chicago law banning counselors from approaching women entering abortion clinics—a law very similar to one upheld by the Supreme Court in 2000.
Conservatives cheer Barrett’s stalwart approach and seeming reluctance to broadly interpret Roe v. Wade. “We have confidence that she will fairly apply the law and constitution as written, which includes protecting the most vulnerable in our nation: our unborn children,” Jeanne Mancini, president of March for Life, said in a statement.
While healthcare and abortion will likely be two of the most controversial topics to come up in Barrett’s hearing, progressive advocacy groups are also preparing to seize on several other cases in her record in the upcoming fight. In a dissent in a 2019 case, Barrett took a muscular view of the Second Amendment right to bear arms, writing that it “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.” She wrote an influential decision last year about campus sexual assault that paved the way for students accused of sexual assault to sue their schools over the handling of their cases.
This year, Barrett voted to uphold the Trump Administration’s “public charge” rule, which makes it more difficult for immigrants seeking green cards if they rely on public benefits. And early in her time on the Seventh Circuit, she voted not to hear an appeal by the Equal Employment Opportunity Commission in a case where it argued AutoZone had violated the Civil Rights Act by using race as a factor to assign employees to different stores. The three judges who wanted to hear the appeal called it a “separate-but-equal arrangement.”
“In selecting Amy Coney Barrett, Donald Trump has chosen the person most likely to turbocharge the intensity of the opposition to this whole process,” Brian Fallon, executive director of Demand Justice, said in a statement.
Barrett’s discipline in her legal reasoning extends to a personal regimen that allows her to manage a demanding career with a busy home life, friends say. Barrett and her husband Jesse, a lawyer, have seven children in South Bend, Indiana. Two of their children are adopted from Haiti and the youngest has Down syndrome. With a lot to juggle at home, the Barretts take turns going to work out in the morning—at a high intensity, CrossFit-style gym they both favor—and Amy takes the early shift, with classes sometimes starting in the 5AM hour, friends who go to the same gym say. Then Amy can come home and help get her kids up for the day, which once included a ritual with her son with Down syndrome in which she’d carry him downstairs by piggyback every morning.
“Our children are my greatest joy, even though they deprive me of any reasonable amount of sleep,” Barrett said after the nomination.
Barrett has “remarkable discipline,” says Jeffrey Pojanowksi, a law professor at Notre Dame and family friend. But with seven children, disarray still encroaches. “It’s not like the Sound of Music where you’ve got the kids lined up in a row, like, perfect organization,” Pojanowski says. “It’s not chaos, but it’s not this oddly disciplined place. They just kind of make it work.”
Friends say the Barretts are active in their community and Amy often drives carpool or volunteers at the school, and they’re a regular presence at Notre Dame football tailgates. A New Orleans native, Barrett is known for her annual Mardi Gras parties and Creole cooking.
In 2017, after Barrett’s confirmation to the Seventh Circuit, the New York Times reported that she and her husband are members of People of Praise, an ecumenical faith community. According to the New York Times, the group requires a lifelong oath of loyalty and teaches that women are submissive to men. None of Barrett’s friends interviewed for this story said they knew whether or not she was a member of the group, but most said People of Praise is a benign part of their neighborhood in South Bend, known for the strong academics at its local school and acts of service in the community.
“If they’re part of a movement that subjugates women, they’re really bad members of it,” says O. Carter Snead, law professor at Notre Dame and a friend of the Barretts. “No one has ever subjugated Amy Coney Barrett. If anyone is subjugated in that marriage, it’s Jesse.”
Barrett has inspired loyal devotion in her students, winning “Distinguished Professor of the Year” from Notre Dame law students three separate years. Colleagues describe her as generous with her time, and as having exacting standards that she brings to her legal reasoning and judicial opinions. Barrett’s mode is “never taking the easy way out,” says Nicole Garnett, a law professor at Notre Dame and close friend of the Barrett family. “Never accepting a soft answer from a student, always digging for the right answer, no matter how painstaking it is.”
She “doesn’t have much patience” for “results-oriented hackery” in legal opinions or academia, Pojanowski says. “She doesn’t like bad arguments.”
But before she might have the opportunity to hone her own legal arguments on the nation’s highest court, she will be thrown into the center of an enormous political fight in Congress, and have to weather the acrimonious partisan brinksmanship that has been escalating over judicial vacancies for decades. Television cameras have already been staked outside her home in South Bend for days, say Nicole Garnett and her husband Rick, who live around the corner from the Barretts. It may be a small taste of what is to come, but friends say Amy Coney Barrett is well-equipped to handle it.
“The story of her life is that there’s a lot going on in her life,” says Rick Garnett, who is also a law professor at Notre Dame. “She has learned how to manage that,” he says, adding, “No matter what field a person is in, one would really benefit from knowing her secret.”