Summary:
August 2018: Barrett Defended Originalism And Textualism At Lecture Hosted By Federalist Society. According to The Observer: University of Notre Dame, “Judge Amy Coney Barrett defended the legal theories of originalism and textualism during a lecture Monday in the McCartan Courtroom in Eck Hall of Law. The talk was hosted by the Notre Dame student chapter of the Federalist Society, a nationwide libertarian and conservative organization that believes maintaining the separation of governmental powers is an important element of safeguarding American freedoms. Mary Steurer | The Observer Amy Coney Barrett, a Notre Dame law professor and judge on the U.S. Court of Appeals for the Seventh Circuit, lectures Monday at the Eck Hall of Law about the legal theories of originalism and textualism.” [Observer: University of Notre Dame, 8/28/18]
Barrett’s Judicial Praxis Was Modelled Of Former Justice Scalia, Who She Clerked For And Said That Since Working For Him “All Jobs Have Been Downhill.” According to The New York Times, "Judge Amy Coney Barrett, a self-described ‘faithful Catholic’ and a former clerk for the conservative Supreme Court Justice Antonin Scalia, joined the appellate court for the Seventh Circuitin 2017 after being nominated by President Trump. ‘She’s very highly respected. I can say that,’ Mr. Trump said on Saturday. She was confirmed by the Senate along largely partisan lines, after she was grilled at her nomination hearing by Democrats on how her religious beliefs might influence her judicial thinking. The moment made her something of a hero to religious conservatives, and Ms. Barrett told the senators that her religious beliefs would not affect her decisions as an appellate judge. […] When Justice Scalia died, Judge Barrett said that ‘all jobs have been downhill’ since her time clerking for him. She admired Justice Scalia’s friendship with Justice Ginsburg, formed in spite of their philosophical and political differences, adding, ‘he had great respect for those whose principles were different from his own.’ She shares the originalist views of Justice Scalia, contending that judges should conserve the meaning of the Constitution as it was written. She wrote in a 2013 Texas Law Review article that a justice’s duty is to ‘enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.’ " [New York Times, 9/20/20]
Barrett’s Peers Have Described Her As A Textualist Like Scalia, Not Like Kennedy Who Interpreted Meaning In His Decision On Obergefell. According to The New York Times, “Peers describe her as a textualist like Justice Scalia: one who interprets the law based on its plain words, as opposed to someone who looks to accomplish the legislature’s purpose. And they said she was an originalist, meaning a judge who interprets the Constitution according to the understanding of those who drafted and ratified it. ‘Justice Kennedy showed a willingness to interpolate things into the Constitution that, in cases like Obergefell, that Justice Scalia for example would not have done,’ said John Garvey, the president of the Catholic University of America, who taught Judge Barrett in law school, referring to the 2015 decision that established a constitutional right to same-sex marriage. ‘My guess is that Judge Barrett wouldn’t assume that the judicial role carried that much power with it.’” [New York Times, 9/20/20]
Barrett On Originalism: “Is About Original Public Meaning” And Need To Conduct Historical Research To “Get A Feel For What People Thought Those Words Meant At The Time.” According to The Observer: University of Notre Dame, “This brand of originalism focused particularly on a traditionalist view of the Constitution, she added. ‘The idea was, 'We're going to interpret the Constitution as the Framers intended it to be,'‘ she said. Barrett said current originalist thinking is more concerned with viewing the law through the eyes of the legislators who wrote it as well as the public it was created to serve. ‘Originalism is about original public meaning,’ she said. The judge added that conducting historical research is often necessary for judges to be able to view the law through an originalist lens. ‘You're consulting those sources to get a feel for what people thought those words meant at the time,’ Barrett said.” [Observer: University of Notre Dame, 8/28/18]
Barrett: “We’re Going To To Interpret The Constitution As The Framers Intended It To Be.” According to The Observer: University of Notre Dame, “This brand of originalism focused particularly on a traditionalist view of the Constitution, she added. ‘The idea was, 'We're going to interpret the Constitution as the Framers intended it to be,'’she said. Barrett said current originalist thinking is more concerned with viewing the law through the eyes of the legislators who wrote it as well as the public it was created to serve. ‘Originalism is about original public meaning,’ she said. The judge added that conducting historical research is often necessary for judges to be able to view the law through an originalist lens. ‘You're consulting those sources to get a feel for what people thought those words meant at the time,’ Barrett said.” [Observer: University of Notre Dame, 8/28/18]
Barrett Disagreed With Criticisms That Originalism Bound The U.S. Into Compliance With Old Laws But Rather Compared It To Odysseus Tying Himself To The Boat Mast To Avoid Being Lured By The Sirens Arguing The Constitution Was “Designed To Constrain Us So That In Moments Where We Are Tempted To Violate What Have Committed To As A Society [….] We Have Prevented Ourselves From Doing That.” According to The Observer: University of Notre Dame, “Barrett said some legal scholars oppose originalism because they argue it binds the United States into rigid compliance with old, outdated laws. Instead of viewing originalism as an indisputable set of rules, however, it ought to be seen as a guideline for modern legal interpretation, she said. For example, she said the Constitution's relative brevity leaves some room for legislative evolution. ‘The Constitution doesn't purport to answer every question,’ she said. ‘It sets the floor in many areas and permits the democratic process to build on top of that.’ Barrett said she believes practicing originalism is crucial to the survival of American democracy. ‘The Constitution is like Odysseus tying himself to the mast and telling his crew, 'When I hear the sirens, don't untie me no matter what,'‘ she said. ‘The Constitution is designed to constrain us so that in moments where we are tempted to violate what we have committed to as a society, our deepest and best principles, like Odysseus tied to the mast, we have prevented ourselves from doing that.’” [Observer: University of Notre Dame, 8/28/18]
Barrett Argued That The Threat That Originalists Posed To Instability In Constitutional Law Was “Vastly Overstated.” In an editorial for the Notre Dame Law Review - Vol. 92, Issue 5 Amy Coney Barrett wrote, “The thrust of the stare decisis-based critique of originalism is that ‘if [originalists] were to vote their principles, their preferred approach would produce instability, chaos, and havoc in constitutional law.’37 This threat is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.” [Notre Dame Law Review - Vol. 92, Issue 5, 7/2017]
In Barret’s 2019 Gun Rights Dissent She Devoted Several Pages To 18th And 19th Century History Showing A Fondness For Originalism. According to Telegraph Herald, “She has long expressed sympathy with 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 that 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.” [Telegraph Herald, 9/22/20]
Barrett Worked On A Long-Term Research Project With Law Professor John Nagle That Examined How Congress Interpreted The Constitution. According to South Bend Tribune, ‘Notre Dame law professor John Nagle helped recruit Amy Coney Barrett to the faculty in 2001. At the time, she was working for a law firm in Washington, D.C. Since moving to South Bend in 2002, Barrett has worked over the last five years with Nagle on a long-term research project examining how Congress interprets the Constitution. They spent time meeting at Martin’s Side Door Deli, or over coffee — often with one of her daughters in tow — at a local Starbucks.’ [South Bend Tribune, 7/8/20]
Barrett on Textualism: Statues Should Be Implemented In A Way Aligned With The Meaning Authors Intended And Required Understanding The “Messy” Legislative Process. According to The Observer: University of Notre Dame, “Barrett said textualism was similar to originalism, but instead of focusing on the interpretation of the entirety of the law, it pertains to the interpretation of individual statutes. Similar to originalism, textualism states that a statute ought to be implemented in a way that aligns with the meaning its writers intended, she said. Barrett said textualist thinking is crucial because of the meticulous work that goes into creating a statute. ‘The legislative process is messy,’ she said. ‘The legislative process necessarily involves a lot of compromise.’ Since even minute details within a piece of legislation are written with purpose, she said, failure to practice textualism may lead to statutes being misapplied. ‘If a judge parts from the text in the service of a more general purpose, that judge risks undoing the very compromise that made the enactment of the statute possible,’ she said.” [Observer: University of Notre Dame, 8/28/18]
Barrett Framed The Question Of Substantive Canons As An Issue For “Textualists.” According to Barrett, “The courts' adoption of more aggressive substantive canons poses no problem of authority for dynamic statutory interpreters, who conceive of courts as the cooperative partners of Congress and treat the protection of social values as part of the courts' task in statutory interpretation. It poses a significant problem of authority, however, for textualists, who understand courts to be the faithful agents of Congress.” [Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 2010]
Barrett Explained How Lacking A Goal To “Protect A Public Value,” Textualists Cannot Apply Substantive Canons So Easily. According to Barrett, “Because the very point of a substantive canon is to protect a public value, sometimes at the expense of a statute's best reading, substantive canons fit easily into the dynamic framework. The case for substantive canons is more difficult for textualists, 25 who maintain that federal judges, as Congress's honest agents, must apply statutes as they are written, not improve upon them. A judge applying substantive canons often does more than implement the statute as written; she often improves upon it by shading it to account for policies external to the statute. Thus, while application of substantive canons is a natural outgrowth of dynamic statutory interpretation, it is an apparent deviation from textualism.” [Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 2010]
Barrett Identified Skepticism Textualists Have Had With Lenity As A Canon, Even Though It’s Uncontroversial. According to Barrett, “Some of the history reflects what would be, even for the textualist, an uncontroversial use of substantive canons. Lenity is a particularly good example. Textualists have expressed skepticism about lenity's legitimacy on the ground that the canon permits a court to depart from a statute's most natural interpretation. 220 To the extent that textualists have indicated a belief that such departures are part of the historical tradition of lenity in America, that belief is mistaken. To be sure, an effort to undermine the text was part of the tradition of lenity as applied by the English courts that invented the canon. But as Section A.1 recounts, federal courts modified the canon, emphasizing that the best interpretation of a penal statute should always trump a more lenient but less plausible one. For early courts, lenity served as a tie breaker between two equally plausible interpretations of statutory text, and as Part I explaines, [sic] this use of a canon is perfectly consistent with faithful agency.” [Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 2010]
Barrett Said That Textualists Do Not Accept Values Like Fairness And Equity Justify Straying From The Most Natural Reading Of A Statute. According to Barrett, “Textualists have made quite clear that extraconstitutional values like fairness and equity do not justify departures from the most natural reading of a statute.” [Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 2010]
Barrett’s Stated The Obligation Of Faithful Agency Is Not Absolute For Textualists. According to Barrett, “The conflict between substantive canons and faithful agency pushes textualists to think hard about whether the judicial obligation of faithful agency is unqualified. This Article has argued that the obligation is not necessarily absolute. At least when a substantive canon promotes constitutional values, the judicial power to safeguard the Constitution can be understood to qualify the duty that otherwise flows from the principle of legislative supremacy.” [Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 2010]
During Her Senate Hearing, Barrett Claimed She Had Never Said That Judges Should Not Be Bound By “Stare Decisis.” According to CSPAN, “Barrett: I have not said that judges should not be bound stare decisis.” [CSPAN, 9/6/17, 53:20]
Barrett Argued That Stare Decisis Raises Due Process Concerns And “Slides Into Unconstitutionality.” According to Barrett, “In this Article, I argue that the preclusive effect of precedent raises due process concerns, and, on occasion, slides into unconstitutionality.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Asserted That Stare Decisis Precludes The Opportunity For A Hearing Before Depriving A Person Of Their Rights. According to Barrett, “The Due Process Clause requires that a person receive notice and an opportunity for a hearing before a court deprives her of life, liberty, or property. In the context of preclusion, courts have translated this requirement into the general rule that a judicial determination can bind only the parties to a dispute, for only the parties have received notice of the proceeding and an opportunity to litigate the merits of their claims […] Yet stare decisis often functions inflexibly in the federal courts, binding litigants in a way indistinguishable from nonparty preclusion.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Made The Originalist Position That Stare Decisis Was Not The Intended Structure For America’s Legal System At The Founding. According to Barret, “Historical work done by scholars of stare decisis suggests that stare decisis doctrine is a relatively modern doctrine. While lawyers and courts were reasoning from precedent as early as the time of Coke, the notion that courts have any sort of obligation to follow precedent did not surface until the time of Blackstone, and even Blackstone's concept of precedent was relatively soft. At the time of the Founding, the concept of precedent was in a state of flux. 20 7 As Henry Monaghan puts it, ‘The Framers were familiar with the idea of precedent. But ....[t]he whole idea of just what precedent entailed was unclear.’” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Suggested That Issues Should Be “Hashed Out” Multiple Times Before Coming To A Judgment On The Issue. According to Barrett, “Allowing an issue to be hashed out multiple times compensates for the imperfections-the very humanness-in the process of decisionmaking. It allows the courts to see a more complete picture before rushing to judgment.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Concludes That Stare Decisis Should Be Made More Flexible. According to Barrett, “This Article urges the federal courts to restore flexibility to stare decisis doctrine. Generally speaking, if a litigant demonstrates that a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent. Reliance interests count, but they count far less when precedent clearly exceeds a court's interpretive authority than they do when precedent, though perhaps not the ideal choice, was nonetheless within the court's discretion.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Downplayed The Relevance Of The Implications To The Supreme Court, Saying That Her Emphasis Was The Court Of Appeals. According to Barrett, “Because most contemporary studies of stare decisis focus on the Supreme Court, it is worth emphasizing that the primary implications of this study will be for the courts of appeals. As a general rule, the district courts do not observe horizontal stare decisis. 13 And while the force of horizontal stare decisis is certainly felt in the Supreme Court, the courts of appeals feel it more keenly.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Claimed That Scholarship On Statutory Stare Decisis Hasn’t Focused On It’s Impact On Legislative Supremacy In Non-Supreme Court Settings. According to Barrett, “Scholars of statutory interpretation have not noticed the appearance of this doctrine in the lower courts, and the logic of its presence there is not immediately apparent. It is one thing to claim that congressional silence signals approval of a decision from the Supreme Court; it is another thing to claim that congressional silence signals approval of a decision from any of the courts of appeals.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett’s Sugested Remedy Is To End Statutory Stare Decisis In Courts Of Appeals. According to Barret, “Abandoning statutory stare decisis in the courts of appeals is a step in that direction. Even beyond the limited doctrinal impact of this insight, however, the question whether the courts of appeals ought to be applying statutory stare decisis is a question worth asking.” [Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 2003]
Barrett Argued That Constitutional Originalism Did Not Necessarily Need To Rely On Prior Judicial Decision. In an editorial for the Notre Dame Law Review - Vol. 92, Issue 5 Amy Coney Barrett wrote, “In an important sense, originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” [Notre Dame Law Review - Vol. 92, Issue 5, 7/2017]
Barrett: “Originialism Priorities What We Might Think Of As The Original Precedent.” In an editorial for the Notre Dame Law Review - Vol. 92, Issue 5 Amy Coney Barrett wrote, “Thus originalism does not breed contempt for precedent—quite the opposite. That said, originalism prioritizes what we might think of as the original precedent: the contemporaneously expressed understanding of ratified text. When new interpretations deviate from the old, and those deviations become entrenched, this comparatively new precedent and a commitment to the old can be in real tension.” [Notre Dame Law Review - Vol. 92, Issue 5, 7/2017]
Barrett Wrote That Justice Scalia Was “Willing To Treat Stare Decisis As A Limited, Pragmatic Exception To Originalism” But Left Room To Explore The Tension Between The Two Concepts. In an editorial for the Notre Dame Law Review - Vol. 92, Issue 5 Amy Coney Barrett wrote, “Justice Scalia’s opinions in the cases are consistent with the approach he described in extrajudicial writing: he was willing to treat stare decisis as a limited, pragmatic exception to originalism. The careful explanations he gave, however, open up potential lines of inquiry for those exploring whether the tension between originalism and stare decisis can be resolved as a matter of principle.” [Notre Dame Law Review - Vol. 92, Issue 5, 7/2017]
Barrett: “It Is Worth Considering Whether Principle Ever Obligates A Justice To Put The Question Of Precedent’s Validity On The Table.” In an editorial for the Notre Dame Law Review - Vol. 92, Issue 5 Amy Coney Barrett wrote, “Students of stare decisis focus primarily on how stare decisis should play out once the validity of a precedent is on the table, but agenda control is equally if not more important. It also poses a distinct set of questions. For example, it is worth considering whether principle ever obligates a justice to put the question of precedent’s validity on the table sua sponte; whether duty strongly counsels a minimalist approach that avoids questioning precedent wherever possible; whether it is a matter left to the prudential judgment of each Justice; and, if it is a prudential judgment, what factors should guide the decision.” [Notre Dame Law Review - Vol. 92, Issue 5, 7/2017]
Barrett: “Stare Decisis Is Not A Hard And Fast Rule, And The Court Has Shown Itself Willing On Any Number Of Occasions To Reverse The Court Entirely In Its Interpretation Of The Constitution.” In an editorial Notre Dame Law Review - Vol. 83, Issue 4, Amy Coney Barrett wrote, “It is typically more fruitful for nonjudicial actors to seek overruling in the Court itself than overruling by constitutional or congressional means.92 Stare decisis is not a hard and fast rule, and the Court has shown itself willing on any number of occasions to reverse course entirely in its interpretation of the Constitution.” [Notre Dame Law Review - Vol. 73, Issue 3, 1/1/08]
Barrett Argued That South Dakota’s Attempt To Ban Abortion Might Have Been An Effort To Provoke A Supreme Court Challenge. In an editorial Notre Dame Law Review - Vol. 83, Issue 4, Amy Coney Barrett wrote, “Other times, nonjudicial actors can create test cases only by themselves acting in a way that contradicts the Court’s then-existing jurisprudence. This might be what South Dakota was doing with its abortion ban: provoking a challenge to its conduct that would give the Supreme Court an opportunity to retroactively justify it. This means of testing precedent presents a sticky problem for the government actor.” [Notre Dame Law Review - Vol. 73, Issue 3, 1/1/08]
Barrett Stated That The High Court Should Be More Open To Overturning Precedent. According to the Orlando Sentinel, “Most judicial nominees voice respect for stare decisis during confirmation hearings. In her writings, Barrett, a former Notre Dame law professor and recent appointee to the Chicago-based 7th U.S. Circuit Court of Appeals, said the high court should be more open to overturning precedent. ‘Stare decisis is not a hard-and-fast rule in the court's constitutional cases,’ Barrett wrote in a 2013 law review article. She added, ‘there is little reason to think reversals would do it great damage,’ referring to the court's reputation. ‘I tend to agree with those who say that a justice's duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.’” [Orlando Sentinel, 7/3/18]
2013: Barrett Wrote An Article In Texas Law Review Where She Discussed When The Supreme Court Should Overturn Past Decisions Writing 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.” According to The Courier Journal, “In a 2013 Texas Law Review article exploring when the Supreme Court should overturn past decisions, Barrett wrote that she agrees ‘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.’ She also wrote that the public's response to controversial cases like Roe v. Wade ‘reflects public rejection’ of the idea that legal precedent ‘can declare a permanent victor in a divisive constitutional struggle.” [Courier Journal, 9/20/20]
Barrett Wrote A Series Of Articles Questioning Whether The Supreme Court Should Be Bound So Tightly To “Stare Decisis” And Called For More “Flexible” Understanding Suggesting A Willingness To Overturn Decades Long Precedent Regarding Abortion. According to The Daily News (Longview, Washington), “OK, but does that mean Barrett would overturn Roe? Here is where the second strand comes in: a series of law review articles in which Barrett outlines her view that the Supreme Court should not be so tightly bound by the doctrine of adhering to precedent — stare decisis — especially on matters of constitutional law. ‘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,’ Barrett wrote in 2013. In a 2003 article, Barrett called for a more ‘flexible’ understanding of stare decisis, arguing that courts should be less focused, in deciding whether to overrule a case, on so-called reliance interests — the degree to which a decision has been woven into the settled expectations of those affected. When ‘a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent,’ she writes. ‘Reliance interests count, but they count far less when precedent clearly exceeds a court's interpretive authority.’ Reliance interests like, say, what the court plurality relied on in 1992, in deciding not to overrule Roe: ‘for two decades, ... people have organized intimate relationships ... in reliance on the availability of abortion in the event that contraception should fail.’” [The Daily News (Longview, Washington), 7/8/18]
Barret’s 2013 Law Review Listed 10 Cases She Said Were Considered “Super Precedents” Including Brown V. Ed But Not Roe V Wade, An Omission She Explained Because Public Controversy About It Never Abated. According to Chicago Daily Herald, “In a 2013 Texas Law Review article, 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.” [Chicago Daily Herald, 9/22/20]
Democratic Senators Criticized Barrett From Excluding Roe V. Wade From An Article She Wrote About A “Hit List” Of “Super Precedents” In Which “No Justice Would Overrule” But Barrett Deflected By Claiming She Quoted The List From Someone Else And Offered No Analysis On Her Own Definition Of Roe. According to The Indianapolis Star, “During her confirmation hearing, Democratic senators tried to pin down Barrett on when the Supreme Court should overturn past decisions. They noted that she wrote in the 2013 law review article that ‘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.’ In that article, Barrett did not include Roe v. Wade in a ‘hit list’ of ‘super-precedents’ - cases ‘that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds.’Barrett said she was quoting a list composed by others, and she has never offered her own definition or analyzed whether any particular case qualifies.” [Indianapolis Star, 7/8/18]
Senators Argued That The Issue Of Preserving Supreme Court Precedents, Known As Stare Decisis, Showed A Candidate’s Willingness To Overturn Roe v Wade. According to the Orlando Sentinel, “Judge Amy Coney Barrett, one of President Donald Trump's top candidates for the soon-to-be-open Supreme Court seat, has been usually frank in her support for overturning precedents that are not in line with the Constitution. The issue of preserving Supreme Court precedents, a doctrine known as stare decisis, is certain to play a prominent role in the confirmation process. Key senators say they will view a candidate's willingness to reverse previous decisions as an indication they might overturn the landmark 1973 abortion ruling Roe v. Wade.” [Orlando Sentinel, 7/3/18]
Barret Wrote That Supreme Court Precedents Were Not Sacrosanct, A Fact Interpreted By Some As A Threat To Roe V. Wade. According to Detroit Free Press, “Barrett rocketed to the top of Trump's list of potential nominees after her 2017 confirmation hearing for a seat on the U.S. Court of Appeals for the 7th Circuit, when Democrats cited her deep Catholic faith not as an advantage but an obstacle. She was confirmed, 55-43. ‘If you're asking whether I take my faith seriously and I'm a faithful Catholic, I am,’ Barrett responded during that hearing, ‘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 has written that Supreme Court precedents are not sacrosanct, which liberals have interpreted as a threat to the 1973 Roe v. Wade decision legalizing abortion nationwide.” [Detroit Free Press, 9/19/20]
Barret Held That Judges Should Not Be Politicians On The Bench And Should Follow A Strict Interpretation Of Text And They Must Sometimes Make Decisions That “Yield Outcomes That Are Not Outcomes They Would Prefer.” According to The Indianapolis Star, “In a talk at Hillsdale College in Michigan in May 2019, Amy Coney Barrett emphasized the courage a judge must have in setting aside personal opinions and making rulings that are dispassionate. A judge isn't on the bench to win a popularity contest, she said. ‘The law simply does not align with a judge's political preference or personal preference in every case,’ Barrett, a federal judge and a Notre Dame law professor, told the audience. ‘And so it will be the case that judges have to make hard decisions and that they have to decide cases in ways that yield outcomes that are not the outcomes they would prefer.’ Later, when asked about the intersection of politics and the courts, she replied, ‘If we reduce the courts to mere politics, then why do we need them? We already have politicians.’ It was an affirmation of her stance that judges should act on the rule of law, not as policy makers. As an originalist, arguing that the Constitution should be interpreted based on the original understanding of its founders, Barrett has advocated for a strict interpretation of the text.” [Indianapolis Star, 9/20/20]
September 2019: Barrett Said “People Perceiving [The Judiciary] As Partisan” Was The Most Damaging Threat And Endorsed Chief Justice Roberts Admonition Of Trump For His “Obama Judge” Comments. According to The Washington Examiner, “7th Circuit Judge Amy Coney Barrett said the greatest threat to the judiciary in America is its partisan reputation. Barrett spoke on a panel with other district court judges appointed by President Trump and former President Barack Obama on Saturday at William & Mary Law School, according to the Wall Street Journal. Trump appointed Barrett, a favorite to join the Supreme Court should a spot open, to her seat on the 7th Circuit in 2017. William & Mary law professor Allison Orr Larsen asked the panel what each thought was the judiciary's greatest threat. Barrett responded that ‘people perceiving us as partisan’ is the most damaging. The panel agreed with Barrett. Barrett endorsed a November 2018 statement by Supreme Court Chief Justice John Roberts condemning politicization of the judiciary by Trump, who had recently blasted a ruling by an ‘Obama judge.’ ‘The chief justice, I think, articulated what members of the judiciary feel,’ Barrett said. ‘The chief justice responded and pushed back and said, 'You know, we don't have Obama judges.'‘” [Washington Examiner, 9/16/19]
Barrett Implied That Federal Judgeships Are Inherently Political. According to her 1998 Journal Article,“Judges in civil law countries are nonpolitical civil servants; they look on their job as a fairly mechanical one. Federal judges are nominated and confirmed by politicians.” [“Catholic Judges in Capital Cases,” 1/1/98]
Barrett Dissented From Panel Decision To End Trump’s Public Charge Rule In Illinois. According to Postmedia Breaking News, “In June, Barrett said in a dissenting opinion that she would have let one of Trump's hardline immigration policies go forward in Illinois. The litigation was over the ‘public charge’ rule, a policy of denying legal permanent residency to certain immigrants deemed likely to require government assistance in the future. Barrett dissented when a three-judge panel voted to halt the policy in Illinois.” [Postmedia Breaking News, 9/20/20]
Barrett Authored A 40 Page Dissent In Favor Of The Trump DHS Rule. According to National Review, “Seventh Circuit chief judge Diane Wood wrote the majority opinion, which was joined by Judge Ilana Rovner. Judge Amy Coney Barrett penned a powerful dissent (which runs from pages 42 to 82 of the slip opinion). For those keeping score at home, Wood is a Clinton appointee; Rovner, a Bush 41 appointee, is among the court’s most liberal members; and Barrett is a Trump appointee and a prominent contender for his next Supreme Court nomination.” [National Review, 6/11/20]
Barrett Suggested That It Is Not Clear That The Supreme Court Has Supervisory Authority Over Lower Courts. According to Barrett, “Contrary to the Court's assertion in Dickerson, however, the law in this area is not clear. The Supreme Court has never justified its claim to power over inferior court procedure. Both the Court and scholars studying it have assumed that the Court's assertions of supervisory authority are legitimate so long as they do not exceed the bounds of the inherent authority that every federal court possesses over procedure- But that inherent authority, which is incident to ‘the judicial Power’ that Article III grants every federal court, has conventionally been understood as authorizing a federal court to regulate its own proceedings.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Concluded That The Constitution Did Not Grant The Supreme Court Supervisory Power, But That Congress Could Decide To Pass Legislation Granting That Power. According to Barrett, “In the end, the Article concludes that the Constitution's text, structure, and history do not support the proposition that the Supreme Court possesses supervisory power over inferior courts by virtue of its constitutional ‘supremacy.’ Rather than reflecting a longstanding, constitutionally endorsed practice, the supervisory power doctrine more likely reflects modern assumptions about the Supreme Court's role in the federal judiciary. Congress can decide to give the Supreme Court such power through enabling legislation, but it seems exceedingly unlikely that the Constitution confers it.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Pointed To Examples Like The 1946 Case Thiel V. Southern Pacific Co. As An Example Of Where The Supreme Court Has Already Used Its Supervisory Power. According to Barrett, “To understand how the supervisory power works, it is helpful to consider some of the cases in this line. Thiel v. Southern Pacific Co. is a frequently cited example. There, the Supreme Court relied on its supervisory authority to announce a rule governing the composition of federal juries.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Claimed That The Justifications For The Court’s Supervisory Power Has Been “Remarkably Vague.” According to Barrett, “The Supreme Court has been remarkably vague about the source of its supervisory authority. After exhaustively studying the Supreme Court's cases, Professor Sara Sun Beale has offered what stands as the best-articulated justification for the doctrine. Professor Beale persuasively rejects the proposition that the supervisory authority has a statutory source. As she explains, the detailed scheme prescribed by the Rules Enabling Act makes it difficult, if not impossible, for the Supreme Court to construe more general statutes like the appellate review statutes as grants of supervisory procedural authority. Instead, consistent with what she finds implicit in the cases, Beale identifies Article III's grant of 'judicial power" as the source of supervisory authority. [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Argued That The Existence Of Article III’s Definitions Of Supreme And Inferior Courts Was Not Sufficient To Give The Court Supervisory Authority. According to Barret, “Locating the supervisory power in this aspect of Article III has the benefit of explaining the contours of the doctrine. The Supreme Court has been emphatic in its insistence that its supervisory power does not extend to state courts, although it has never explained why that is so. Article III's distinction between supreme and inferior courts offers an explanation. If rooted there, the supervisory power is not simply incident to the Court's appellate jurisdiction, which extends to both state and federal courts.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Acknowledged That The Appellate Jurisdiction Clause Did Envision A Hierarchy Among The Courts, But Called It “Fairly Weak.” According to Barrett, “The Appellate Jurisdiction Clause is good evidence that Article III envisions some sort of hierarchy. But the hierarchy that one can infer from that clause, standing alone, is fairly weak.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Pointed To 18th Century Dictionaries To Justify Her Reluctance To Simply Read Supreme Court As Supreme Over Inferior Courts. According to Barrett, “Dictionaries suggest two possible interpretations of the distinction between ‘supreme’ and ‘inferior,’ only one of which necessarily subjects inferior courts to Supreme Court control. The 1755 edition of Samuel Johnson's dictionary offers the following definitions of the word "inferiour": "1. Lower in place. 2. Lower in station or rank of life .... 3. Lower in value or excellency .... 4. Subordinate." 86 The same dictionary gives the following definitions for the word "supreme": "1. Highest in dignity; highest in authority .... 2. Highest; most excellent."87 Modern dictionaries define the words similarly.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Claimed That Other Uses Of “Inferior” In The Constitution Contribute To The Ambiguity. According to Barrett, “As it turns out, however, the word ‘inferior’ in the Appointments Clause does little to dispel the ambiguity, for the use of "inferior" in the Appointments Clause presents the same interpretive dilemma that it does in Articles I and III. In the Appointments Clause, as in Articles I and III, one can read ‘inferior’ to mean "subordinate" or merely "different in rank or authority." Although the Supreme Court has never interpreted the word ‘inferior’ (or, for that matter, the word ‘supreme’) for purposes of Articles I and
III, it has done so for purposes of Article II. And, in that context, the Supreme Court interpreted the word ‘inferior’ to mean a ‘difference in rank or authority’ rather than ‘subordinate.’” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Conceded That At Least Since The Twentieth Century It Has Been Accepted That The Supreme Court Has Supervisory Power Over Inferior Courts. According to Barrett, “It was not until the twentieth century, when the Court rejected the notion of federal general common law, that it claimed the right to prescribe procedure for inferior federal courts. Given the recent vintage of this claim, history does not support the notion that the power to prescribe inferior court procedure is inherent in any court designated ‘supreme.’” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]
Barrett Used Her Conclusion To Allude To Implications A Change In Perspective Around The Supreme Court’s Authority Could Have On Stare Decisis Among Other Issues. According to Barrett, “The implications of this conclusion are potentially far-reaching. For example, if it lacks inherent supervisory power over inferior federal courts, does the Supreme Court have the authority to prescribe, through adjudication, rules of statutory interpretation that all federal courts must observe? Rules of issue and claim preclusion? Rules of stare decisis? Resolving these questions is a problem for another day. For now, it is enough to observe that, unless the Supreme Court acts through the federal rulemaking process, inferior federal courts may have more independence on these matters than is commonly assumed.” [Amy C. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 2006]