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Trump’s Superb Choice

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eye on the news

Trump’s Superb Choice

It would be hard to find a more qualified and sober-minded nominee for the Supreme Court than Amy Coney Barrett. September 27, 2020
Politics and law

Judge Amy Coney Barrett, whom President Donald Trump has nominated to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg, is a distinguished scholar whose judicial philosophy balances a commitment to originalism with a respect for precedent. Dire predictions circulate about the consequences of adding another conservative-leaning justice to the Court, but Barrett’s record suggests that she will do credit to the institution.

In many ways, Barrett’s resume is a testament to the trail blazed by Ginsburg. Like the late justice, Barrett graduated at the top of her law school class and served as a judicial clerk, first for federal appellate judge Laurence Silberman and then for Supreme Court Justice Antonin Scalia. After a stint in private practice, Barrett joined the faculty at Notre Dame Law School, where she was named “distinguished professor of the year” three times.

Barrett has earned lavish praise from colleagues across the ideological spectrum. In 2017, when Trump nominated Barrett to the U.S. Court of Appeals for the Seventh Circuit, her Notre Dame colleagues unanimously supported her in a letter to the Senate Judiciary Committee. The law professors wrote that they had a “wide range of political views” but were “united however in our judgment about Amy.” She was also endorsed in a letter signed by every former Supreme Court law clerk who clerked while Barrett worked for Justice Scalia. The former clerks’ letter described Barrett as a “woman of remarkable intellect and character,” as someone who “conducted herself with professionalism, grace, and integrity” and “was able to work collaboratively with her colleagues (even those with whom she disagreed) on challenging legal questions.” Barrett was ultimately confirmed to the Seventh Circuit with bipartisan support.

Now, however, with a Supreme Court seat in the balance, Barrett has become the subject of scathing—and misguided—criticism from the left. The Washington Post’s Ruth Marcus, for example, asserts that Barrett “would not hesitate to jettison decisions with which she disagrees,” a glaring mischaracterization of the nominee’s record on adherence to precedent, the principle known as stare decisis. Barrett has in fact defended the Supreme Court’s existing presumption in favor of stare decisis—a presumption that promotes stability while affording the justices’ flexibility to depart from precedent.

Before overruling a precedent, according to Barrett, a Supreme Court justice must “think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.” In her academic writings, Barrett has also recognized the concept of “superprecedents” such as Brown v. Board of Education that enjoy such broad consensus that no judge would seriously consider overturning them. Barrett’s fidelity to precedent is evident from cases like Price v. City of Chicago (2019), in which she joined an opinion relying on the Supreme Court’s ruling in Hill v. Colorado (2000) to uphold a Chicago ordinance that bars anti-abortion protestors from approaching within eight feet of women entering an abortion clinic. Given her views on stare decisis, it appears unlikely that Barrett would vote to overturn the Court’s 1973 decision in Roe v. Wade; however, she would likely be more sympathetic than Ginsburg was to state laws that limit the unfettered right to abortion on demand. In a 2018 case, Planned Parenthood v. Commissioner, for example, Barrett joined a dissent that cast doubt on a Seventh Circuit decision that struck down an Indiana law prohibiting abortions motivated solely by the race, sex, or disability of the fetus.

As a professor and a judge, Barrett has been a proponent of textualism, the doctrine that courts should apply a statute’s text as it was understood by those who enacted the statute. In constitutional law, this doctrine is better known as “originalism”—that is, a commitment to the original public meaning of the Constitution’s various provisions. Barrett’s defense of this interpretive approach is not a mere pretext to achieve conservative results; rather, it is based on judicial deference to the democratic process that gives statutes their legitimacy. Barrett has, for example, criticized Chief Justice John Roberts’s “saving construction” of the Affordable Care Act’s individual mandate as a tax (NFIB v. Sebelius) because “a judge who adopts an interpretation inconsistent with the text fails to enforce the statute that commanded majority support. If the majority did not enact a ‘tax,’ interpreting the statute to impose a tax lacks democratic legitimacy.”

Barrett’s originalist approach led her to dissent in the 2019 case Kanter v. Barr in which the Seventh Circuit upheld federal and state laws that prohibit gun ownership for people convicted of felonies—even nonviolent felonies. The plaintiff in that case had been convicted of one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. In her dissent, Barrett reviewed Founding-era legislation and commentary, concluding that a legislature can prohibit violent felons from possessing guns without violating the Second Amendment, but a blanket dispossession of all felons goes too far.

Perhaps Barrett’s most influential ruling to date came in Doe v. Purdue University (2019), in which she led a decision reinstating a lawsuit against Purdue University by a male student who had been suspended for committing sexual violence against a female student. The student, known as John Doe, alleged that Purdue’s Dean of Students had found him guilty without ever speaking to his accuser and that a university review committee also blindly accepted the accuser’s account without hearing from John or allowing him to present any evidence. Writing for a unanimous panel of three judges —all women—Barrett wrote that Doe had stated a plausible claim that he had been “denied an educational benefit on the basis of his sex” in violation of Title IX. The court also held that Doe’s allegations stated a claim for violation of due process under the Fourteenth Amendment. “Purdue’s process,” Barrett wrote, “fell short of what even a high school must provide to a student facing a days-long suspension.” The Purdue decision, already widely cited in other circuits, shows a clear-eyed skepticism about lopsided college disciplinary procedures that have been criticized by experts on the right and left, including the late Justice Ginsburg.

With an election just weeks away, the timing of Barrett’s nomination has predictably provoked controversy. But today’s political squabbles should not overshadow the intellect and judicial temperament that make her a superb choice for the high court.

Photo by Chip Somodevilla/Getty Images

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