Judge Amy Coney Barrett on what a Trump Supreme Court would look like
Judge Amy Coney Barrett spoke at Jacksonville University’s Public Policy Institute in 2016 discussing what a Trump Supreme Court would look like.
Judge Amy Coney Barrett knows she’s in for an ugly fight as the Senate handles her Supreme Court nomination. During a chat with Notre Dame undergrads last year, she called the process “brutal” and “toxic.”
“People have a fundamental misunderstanding of the judicial role,” Barrett said. “If you think the judge will be imposing their policy preferences, it leads to an all-in takedown.”
Her nomination to the Supreme Court follows a lecture tour over the past few years in which she addressed academics, lawyers, University of Notre Dame alumni and private audiences. Those talks offer some insight into Barrett’s judicial philosophy and her meteoric ascent from law school professor to Supreme Court nominee.
Some of the events featured Barrett in buttoned-up legal discussions about the development of her legal philosophy of originalism, the view that judges must adhere closely to the written text of the Constitution and the plain meaning of language used in statutes at the time they were enacted.
In smaller, casual settings, Barrett went into her upbringing, her family life with seven children and her personal tastes: She loves chocolate, uses Pinterest and almost became an English professor. She said she has been influenced by books written by Willa Cather and Kate Chopin.
And when it came to whom Trump might nominate to fill Supreme Court vacancies, as recently as 2016 Barrett said she had no clue.
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Barrett has appeared at more than 100 speeches, panels and events since 2010, according to materials provided to the U.S. Senate. She visited 18 different cities in just the last two years. She’s spoken in London and Ecuador, behind closed doors at private legal luncheons, and at Federalist Society debates and panels.
Recent financial disclosures show she was reimbursed for transportation, lodging and meals for the speaking engagements. A 2017 disclosure shows she received about $1,000 to $3,500 per talk.
In comparison, Associate Justice Brett Kavanaugh reported more than 150 appearances in the decade before his nomination, though 65 of them were in Washington, D.C., where he served as an appeals court judge.
USA TODAY reviewed more than 15 hours of Barrett’s events from 2016 to 2019.
Barrett, an acolyte of Justice Antonin Scalia, often expressed disdain for injecting policy preferences into judicial rulings. She recounted stories as a young clerk for the gregarious Scalia, whom she described as full of “wit, wisdom and a dose of terror.”
And she provided occasional hints about how she could rule on major issues that could come before the Supreme Court, such as the Affordable Care Act, Roe v. Wade and challenges to the presidential election.
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An originalist tying Odysseus to the mast
Barrett’s confirmation hearings could be political theater, but people deserve to hear a nominee’s judicial philosophy, she told an audience at Notre Dame last year.
“Not having a philosophy is a philosophy. If your approach is grab-bag, that’s your theory,” Barrett said. A nominee “can’t answer about specific cases, but questions about judicial philosophy should be on the table. … You have a right to know what yardstick you’re using to make those decisions.”
Chief Justice John Roberts employed his hallmark baseball metaphor in his 2005 confirmation, “My job is to call balls and strikes and not pitch or bat. … I have no agenda.”
Similarly, expect to hear Barrett bring up the Greek mythological hero Odysseus, tied to his ship’s mast as the dangerous Sirens tempt him to jump overboard. Barrett has used that metaphor for those who might surrender to temptation to disregard the Constitution. She sees herself, and all good judges, as one of the crew members lashing him down.
But, she’s warned, that philosophy isn’t all-binding.
“The Constitution and the courts function in that way; it ties transient political majorities and government officials, who in moments of weakness would violate the constitutional norms to which we’re committed,” Barrett told a group at Villanova Law School last year.
“Is the Constitution a straitjacket? No, the Constitution itself leaves plenty of room for change — political, legal, social and otherwise. The Constitution is less than 6,000 words and makes no attempt to regulate every aspect of American life.”
In her talks Barrett frequently addressed what she calls the “dead-hand objection” to originalism — seeking out the wishes and intentions of a “bunch of dead white men,” as she calls the founders.
“The fact that we weren’t alive or didn’t have the ability to participate doesn’t render the law illegitimate,” Barrett said. “We accept the law as we find it, until we lawfully change it.”
Given the national conversation about racial injustice, senators could attempt to push Barrett on her originalism, said Case Western Reserve University law professor Jonathan Adler, who hosted the judge last year for a lecture.
“I would not be surprised if opponents misrepresent or caricature originalism on incendiary topics,” Adler said. “The fact that some founders had retrograde views on a range of subjects doesn’t control what the text itself means.”
Barrett falls into a faction of originalists who seek out the original meaning of the Constitution by asking what the generally understood meaning of the text was at the time of ratification, “as opposed to actually trying to get into the head of James Madison,” said Princeton University jurisprudence professor Robert George, who hosted Barrett at the school last year.
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She is likely to face questions, as she did in several panels, about whether the Supreme Court should overturn rulings while maintaining stability in the courts.
“A primary way that the Supreme Court contributes to stability is not to grant cert (accept a case for review) when the question presented is, ‘Do you want to overturn a precedent?’” Barrett said while moderating a Federalist Society discussion in 2018.
“I think that if the court is looking to keep things calm, it will be in the nature of that,” she said. The court will decline “to take up cases in which overruling precedent would be on the table.”
Questions about Barrett’s position on overturning precedent are just veiled critiques about her views on Roe v. Wade, said Helen Alvaré, a law professor at the Antonin Scalia Law School at George Mason University.
“I have no illusions the hand-wringing about her views on stare decisis are wedded to Roe,” Alvaré said, referring to the legal principle of following precedent. “But her comments on stare decisis are better read in context and they’re nuanced.”
Hints at cases that may come before Barrett
Barrett describes the judiciary as an impartial body above the political fray, courageously pushing away the temptation of personal preferences.
But those academic lectures could soon slam headlong into cases to be heard by the Supreme Court she hopes to join. They include the future of President Barack Obama’s signature health care law, which is being challenged for a third time.
“A judge’s view about the constitutionality of the Affordable Care Act should not turn on whether he or she thinks the act is good or bad policy,” Barrett told the Princeton crowd. “(It) should turn on whether the Constitution permits or forbids it. A judge’s role is properly above the political fray, with a duty to the law before personal loyalties.”
Barrett, who as a law professor was a member of a faculty group that opposes abortion, has provided rare glimpses at her views on the future of Roe v. Wade and Casey v. Planned Parenthood, which guarantee the right to an abortion.
She predicted in a 2016 talk at Jacksonville University’s Public Policy Institute that although the right likely wouldn’t go away, the Supreme Court could uphold further restrictions.
“I think the question is how much freedom the Court is willing to let the states have in regulating abortion,” Barrett said. “The Court has held in some circumstances the states can render partial-birth abortions illegal — very late-term abortions.”
Groups opposing Barrett’s nomination have pointed to her Catholic faith, which opposes abortion, as evidence of how she will rule on the topic.
But the judge has said like any other personal preference, judges need to guard against bias.
“It seems to me the premise of the question is that people of faith would have a uniquely difficult time separating their moral commitments from their obligation to apply the law,” she said during a 2019 appearance in Washington, D.C., sponsored by Hillsdale College. “And I think people of faith should reject that premise. All people … or most people, we hope, have deeply held moral convictions, whether or not they come from faith.”
Those remarks amount to a fuller response to Sen. Dianne Feinstein, D-Calif., who pushed Barrett to answer how her faith impacts her views on Roe during her 2017 appeals court confirmation hearing. “The dogma lives loudly within you,” Feinstein said, drawing criticism and energizing conservatives who put that line on T-shirts.
“Roe and Casey and its progeny has been affirmed many times and survived many challenges, and it’s more than 40 years old,” Barrett responded at the time. “It’s not open or up to me challenging that; it would bind.” As an appeals judge, Barrett is bound by precedent. As a Supreme Court justice, she would have latitude to overturn rulings deemed unconstitutional.
Barrett spoke more broadly about faith when she delivered the diploma ceremony address for the Notre Dame Law School class of 2006. She suggested departing students should strive to fulfill the promise of being “a different kind of lawyer.”
“And that is this: that you will always keep in mind that your legal career is but a means to an end, and … that end is building the kingdom of God,” said Barrett, according to a Notre Dame transcript.
“You know the same law, are charged with maintaining the same ethical standards, and will be entering the same kinds of legal jobs as your peers across the country. But if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.”
Private life a balancing act
Audience members at some events wondered how Barrett manages a family of seven children, her cases on the 7th Circuit, law courses at Notre Dame and a reputation as a prolific scholar who publishes law review articles.
She said her husband, Jesse, also an attorney, has taken on most of the household duties: preparing food and taxiing the family to doctors’ appointments and the CrossFit gym where they train. The couple has relied on in-home childcare by Jesse’s aunt for the past 17 years.
Their dual-attorney home life includes mock trials with their children. For awhile, she said, Jesse had the “cool job” as a federal prosecutor, so dinner table chatter could include tales of investigating arson cases and putting bad guys in jail.
“When Emma was little, I kept a basket of toys in my office to bring her in during student meetings,” Barrett said. She said she benefited from “a flexible workplace, and a husband that pitches in, and a town of a manageable size.”
Barrett, the oldest of seven children herself, explained that she always wanted a large family. The Barretts’ decision to adopt two children from Haiti was inspired by a sponsor couple during their Catholic marriage prep classes in Virginia.
In smaller settings, Barrett has described the challenge of raising Benjamin, their youngest, with Down syndrome.
“Some people receive the news of having a child with Down syndrome and completely take it in stride,” Barrett said at Notre Dame. “That was not our experience. It was very difficult for us. … I’ve learned so many lessons about myself and what’s important in life. … It’s difficult, but this is our path.”
Barrett was on her way to becoming an English literature professor after attending Rhodes College in Memphis, Tennessee. She took exams for graduate and law school. After compiling pro-con lists, she decided to pursue law at Notre Dame “to be more involved in policy and shaping of society in a more direct way,” Barrett said at a Notre Dame alumni event in Washington, D.C.
Who would Trump appoint to the court? ‘Who knows?’
Barrett has been on the national radar for the Supreme Court for years, particularly after she was added to Trump’s list of possible picks in 2017. She was considered to succeed Associate Justice Anthony Kennedy, who held a swing seat between the liberal and conservative sides. Kavanaugh was nominated instead.
During her speaking tour, some people have asked her to comment on presidential candidates who say they would choose nominees based on how they would rule on particular issues.
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Judge Amy Coney Barrett speaks at the White House after being put forward by President Trump as his nominee to fill Justice Ginsburg’s vacant seat.
“Those kinds of answers are, I think, what is wrong with our nomination process,” Barrett said at the Jacksonville University event, several days before the 2016 presidential election. “To say I want someone who is pro-life or I want to appoint someone whose primary focus is protecting minority rights, the candidates are talking to their bases and talking to the electorate.”
“We shouldn’t be putting people on the court who share our policy preferences,” she said. “We should be putting people on the court who want to apply the Constitution.”
During that event, Barrett was asked about the type of nominees Trump or Hillary Clinton would appoint to the Supreme Court if they won. “Who knows?” she said of Trump, as the audience laughed. Then she tried to look into the future if he were president.
“I think maybe Trump would appoint some in the mold of Scalia, some more in the mold of Kennedy,” said Barrett, who was still a Notre Dame law professor at the time. “I think we may well end up with a moderate to more conservative court on judicial rule. I think it’s safe to say it wouldn’t be hard to the left-leaning side on the approach to constitutional questions.”