Barrett graduated fromRhodes College before attendingNotre Dame Law School, earning aJuris Doctor (J.D.) degree in 1997 and ranked first in her class. She then clerked for JudgeLaurence Silberman and JusticeAntonin Scalia. In 2002, Barrett joined the faculty at Notre Dame Law School, becoming a professor in 2010.[2][3][4][5] While a circuit judge, she continued to teach civil procedure, constitutional law, and statutory interpretation.[6]
Amy Vivian Coney was born in 1972 inNew Orleans, Louisiana, to Linda (née Vath) and Michael Coney.[21][22] The eldest of seven children, she has five sisters and a brother. Her father worked as an attorney forShell Oil Company, and her mother was a high school French teacher and homemaker. Barrett has Irish and French ancestry.[23][24] Her maternal ancestors were fromBallyconnell,County Cavan,Ireland, while there is also Irish lineage among her father's ancestors. Her great-great-grandparents emigrated from France to New Orleans.[25] Her family is devoutlyCatholic, and her father is anordaineddeacon at St. Catherine of Siena Parish inMetairie, Louisiana, where she grew up.[26][27] Barrett attendedSt. Mary's Dominican High School, anall-girls Roman Catholic high school in New Orleans.[28] She was student body vice president of the school and graduated in 1990.[29]
In 2001, Barrett was a visiting associate professor and John M. OlinFellow in Law atGeorge Washington University Law School. In 2002, she joined the faculty of her alma mater, Notre Dame Law School.[38] At Notre Dame, she taught federal courts, evidence, constitutional law, andstatutory interpretation. In 2007, she was a visiting professor at theUniversity of Virginia School of Law.[39] Barrett was named a professor of law at Notre Dame in 2010, and from 2014 to 2017 held Notre Dame's Diane and M.O. Miller II Research Chair of Law.[40] Her scholarship focused on constitutional law, originalism, statutory interpretation, andstare decisis.[32] Her academic work has been published in theColumbia,Cornell,Virginia,Notre Dame Law Review, andTexaslaw reviews.[38]
At Notre Dame, Barrett received the "Distinguished Professor of the Year" award three times.[38] From 2011 to 2016, she spoke on constitutional law atBlackstone Legal Fellowship, a summer program for law school students that theAlliance Defending Freedom established to inspire a "distinctly Christianworldview in every area of law".[41] While serving on the Seventh Circuit, Barrett commuted between Chicago andSouth Bend, continuing to teach courses on statutory interpretation and constitutional theory.[6][42]
On May 8, 2017, PresidentDonald Trump nominated Barrett to the U.S. Court of Appeals for the Seventh Circuit—the federal appellate court coveringIllinois,Indiana, andWisconsin—after JudgeJohn Daniel Tinder tooksenior status.[5][43] ASenate Judiciary Committee hearing on her nomination was held on September 6, 2017.[44] During the hearing, SenatorDianne Feinstein questioned Barrett about a law review article Barrett co-wrote in 1998 with ProfessorJohn H. Garvey in which they argued that Catholic judges should in some casesrecuse themselves from death penalty cases due to theirmoral objections to the death penalty.[45] Asked to "elaborate on the statements and discuss how you view the issue of faith versus fulfilling the responsibility as a judge today," Barrett said that she had participated in many death-penalty appeals while serving as law clerk to Scalia, adding, "My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge"[46][47] and "It is never appropriate for a judge to impose that judge's personal convictions, whether they arise from faith or anywhere else, on the law."[48] Barrett emphasized that the article was written in her third year in law school and that she was "very much the junior partner in our collaboration."[49] Worried that Barrett would not upholdRoe v. Wade given her Catholic beliefs, Feinstein followed Barrett's response by saying, "the dogma lives loudly within you, and that is a concern."[50][51][52]
JudgeLaurence Silberman, for whom Barrett first clerked after law school, swearing her in at herinvestiture for the Seventh Circuit in 2018
Lambda Legal, anLGBT civil rights organization, co-signed a letter with 26 other gay rights organizations opposing Barrett's nomination. The letter expressed doubts about her ability to separate faith from her rulings on LGBT matters.[55][56] During her Senate hearing, Barrett was questioned aboutlandmark LGBTQ legal precedents such asObergefell v. Hodges,United States v. Windsor, andLawrence v. Texas. She said these cases are "binding precedents" that she intended to "faithfully follow if confirmed" to the appeals court, as required by law.[55] The letter Lambda Legal co-signed read, "Simply repeating that she would be bound by Supreme Court precedent does not illuminate—indeed, it obfuscates—how Professor Barrett wouldinterpret and applyprecedent when faced with the sorts of dilemmas that, in her view, 'put Catholic judges in a bind.'"[55]
Barrett's nomination was supported by every law clerk she had worked with and all of her 49 faculty colleagues at Notre Dame Law school. 450 former students signed a letter to the Senate Judiciary Committee supporting her nomination.[57][58]
On October 5, 2017, the Senate Judiciary Committee voted 11–9 on party lines to recommend Barrett and report her nomination to the full Senate.[59][60] On October 30, the Senate invokedcloture by a vote of 54–42.[61] It confirmed her by a vote of 55–43 on October 31, with three Democrats—Joe Donnelly,Tim Kaine, andJoe Manchin—voting for her.[31] She received her commission two days later.[2] Barrett is the first woman to occupy an Indiana seat on the Seventh Circuit.[62]
Selected cases
Oral arguments fromCook County, Illinois v. Chad F. Wolf, one of the last cases that Barrett took in the Seventh Circuit Court of Appeals in 2020
On the Seventh Circuit, Barrett wrote 79 majority opinions (including two that were amended and one that was withdrawn on rehearing), fourconcurring opinions (one aper curiam opinion), and sixdissenting opinions (six published and one in an unpublished order).[39]
Title IX of the Education Amendments of 1972
In June 2019, the court, in a unanimous decision written by Barrett, reinstated a suit brought by a malePurdue University student (John Doe) who had been found guilty ofsexual assault by Purdue University, which resulted in a one-year suspension, loss of hisNavy ROTC scholarship, and expulsion from the ROTC affecting his ability to pursue his chosen career in the Navy.[63][64] Doe alleged the school'sAdvisory Committee on Equity discriminated against him on the basis of his sex and violated his rights todue process by not interviewing the alleged victim, not allowing him to present evidence in his defense, including an erroneous statement that he confessed to some of the alleged assault, and appearing to believe the victim instead of the accused without hearing from either party or having even read the investigation report. The court found that Doe had adequately alleged that the university deprived him of his occupational liberty without due process in violation of theFourteenth Amendment and had violated hisTitle IX rights "by imposing a punishment infected by sex bias", and remanded to the District Court for further proceedings.[65][66]
Employment discrimination
In 2017, the Seventh Circuit rejected the federal government's appeal in a civil lawsuit againstAutoZone; theEqual Employment Opportunity Commission argued that AutoZone's assignment of employees to different stores based on race (e.g., "sending African American employees to stores in heavily African American neighborhoods") violatedTitle VII of the Civil Rights Act. Following this, Barrett joined the court as it received a petition for rehearingen banc. Three judges—Chief JudgeDiane Wood and judgesIlana Rovner andDavid Hamilton—voted to grant rehearing, and criticized the three-judge panel's opinion as upholding a "separate-but-equal arrangement". Barrett did not join the panel opinion, but voted with four judges to deny the petition to rehear the case. The petition was unsuccessful by a 5–3 decision.[67][33]
In 2019, Barrett wrote the unanimous three-judge panel opinion affirming summary judgment in the case ofSmith v. Illinois Department of Transportation. Smith was a Black employee who claimedracial discrimination upon his dismissal by the department and that he was called a "stupid-assnigger" by a Black supervisor; the department claimed Smith failed work-level expectations during probationary periods. Barrett wrote that usage of the racial slur was egregious, but Smith's testimony showed no evidence that his subjective experience of the workplace changed because of the slur, nor did it change the department'sfact that his discharge was related to "poor performance".[68][69]
Immigration
In June 2020, Barrett wrote a 40-page dissent when the majority upheld a preliminary injunction against the Trump administration's controversial "public charge rule", which heightened the standard for obtaining agreen card.[70] In her dissent, she argued that anynoncitizens who disenrolled from government benefits because of the rule did so due to confusion about the rule itself rather than from its application, writing that the vast majority of the people subject to the rule are not eligible for government benefits in the first place. On the merits, Barrett departed from her colleagues Wood and Rovner, who held that DHS's interpretation of that provision was unreasonable underChevron Step Two. Barrett would have held that the new rule fell within the broad scope of discretion granted to the Executive by Congress through theImmigration and Nationality Act.[71] The public charge issue is the subject of acircuit split.[71][72]
In May 2019, the court rejected aYemeni citizen and her U.S. citizen husband's challenge to aconsular officer's decision to twice deny hervisa application under the Immigration and Nationality Act. The U.S. citizen argued that this had deprived him of a constitutional right to live in the United States with his spouse.[73] In a 2–1 majority opinion authored by Barrett, the court held that the plaintiff's claim was properly dismissed under the doctrine ofconsular nonreviewability. Barrett declined to address whether the husband had been denied a constitutional right (or whether the constitutional right to live in the United States with his spouse existed at all) because the consular officer's decision to deny the visa application wasfacially legitimate and bona fide, and under Supreme Court precedent, in such a case courts will not "look behind the exercise of that discretion". The dispute concerned what it takes to satisfy this standard. A petition for rehearingen banc was denied, with Chief Judge Wood, joined by Rovner and Hamilton, dissenting. Barrett wrote a rare opinion concurring in the denial of rehearingen banc (joined by JudgeJoel Flaum).[73][74]
Abortion-related cases
Barrett had never ruled directly onabortion before joining the Supreme Court, but she did vote to rehear a successful challenge to Indiana's parental notification law in 2019. In 2018, she voted against striking down another Indiana law requiring burial orcremation of fetal remains. In both cases, Barrett voted with the minority. The Supreme Court later reinstated thefetal remains law, and in July 2020 it ordered a rehearing in the parental notification case.[75][76]
In February 2019, Barrett joined a unanimous panel decision upholding a Chicago "bubble ordinance" that prohibits approaching within a certain distance of anabortion clinic or its patrons without consent.[77][78] Citing the Supreme Court'sbuffer zone decision inHill v. Colorado, the court rejected the plaintiffs' challenge to the ordinance onFirst Amendment grounds.[79]
Second Amendment
In March 2019, Barrett dissented when the court upheld the federal law prohibiting felons from possessing firearms.[80] The majority rejected theas-applied challenge raised by plaintiff Rickey Kanter, who had been convicted of felonymail fraud, and upheld thefelony dispossession statute as "substantially related to an important government interest in preventing gun violence." In her dissent, Barrett argued that while the government has a legitimate interest in denying gun possession to felons convicted of violent crimes, there is no evidence that denying guns to nonviolent felons promotes this interest, and that the law violates theSecond Amendment.[81] President Trump pardoned Kanter in December 2020.[82]
Criminal procedure
In May 2018, Barrett dissented when the panel majority found that an accused murderer'sright to counsel was violated when the state trial judge directly questioned the accused while forbidding his attorney from speaking.[83] Following rehearingen banc, a majority of the circuit's judges agreed with her position.[84]
In August 2018, Barrett wrote for a unanimous panel when it determined that the police had lackedprobable cause to search a vehicle based solely upon an anonymous tip that people were "playing with guns", because no crime had been alleged.[85] Barrett distinguishedNavarette v. California and wrote, "the police were right to respond to the anonymous call by coming to the parking lot to determine what was happening. But determining what was happening and immediately seizing people upon arrival are two different things, and the latter was premature...Watson's case presents a close call. But this one falls on the wrong side of theFourth Amendment."[86]
In February 2019, Barrett wrote for a unanimous panel when it found that police officers had been unreasonable to assume "that a woman who answers the door in a bathrobe has authority toconsent to a search of a male suspect's residence." Therefore, the district court should have granted the defendant'smotion to suppress evidence found in the residence as thefruit of an unconstitutional search.[87][88]
Qualified immunity
In January 2019, Barrett wrote for a unanimous panel when it deniedqualified immunity to a civil lawsuit sought by a defendant who as a homicide detective had knowingly provided false and misleading information in the probable causeaffidavit that was used to obtain anarrest warrant for the plaintiff.[89] (The charges were later dropped and the plaintiff was released.) The court found the defendant's lies and omissions violated "clearly established law" and the plaintiff's Fourth Amendment rights and thus the detective was not shielded by qualified immunity.[90]
InHoward v. Koeller (7th Cir. 2018), in an unsigned order by a three-judge panel that included Barrett, the court found that qualified immunity did not protect a prison officer who had labeled a prisoner a "snitch" and thereby exposed him to risk from his fellow inmates.[91][92]
Environment
InOrchard Hill Building Co. v. U.S. Army Corps of Engineers, 893 F.3d 1017 (7th Cir. 2018), Barrett joined a unanimous panel decision, written by JudgeAmy J. St. Eve, in a case brought by a property developer challenging theCorps' determination that awetland 11 mi (18 km) from the nearestnavigable river was among the "waters of the United States."[93] The court found that the Corps had not provided substantial evidence of a significantnexus to navigable-in-fact waters underJustice Kennedy's concurrence in the Supreme Court's decision inRapanos v. United States. The case was remanded to the Corps to reconsider whether such a significant nexus exists between the wetlands in question and navigable waters for it to maintain jurisdiction over the land.[94][95]
Consumer protection
In June 2018, Barrett wrote for the unanimous panel when it found that a plaintiff could not sueTeva Pharmaceuticals for alleged defects in herIUD due to the lack of supportive expert testimony, writing, "the issue ofcausation in her case is not obvious."[96][97][98]
Coronavirus measures
In early September 2020, Barrett joined Wood's opinion upholding the district court's denial of theIllinois Republican Party's request for a preliminary injunction to block GovernorJ. B. Pritzker'sCOVID-19 orders.[34][99] On August 12, 2021, she rejected a challenge toIndiana University's vaccine mandate, marking the first legal test of COVID-19 vaccine mandates before the Supreme Court of the United States.[100]
In August 2020, Barrett wrote for the unanimous panel when it held that aTeamsterslocal did not have standing to appeal an order in theShakman case because it was not formally a party to the case.[105] The union had notintervened in the action, but rather merely submitted a memorandum in the district court opposing a motion, which the Seventh Circuit determined was insufficient to give the union a right to appeal.[106]
President Donald Trump nominated Barrett to the Supreme Court on September 26, 2020.
Barrett was on Trump's list of potential Supreme Court nominees since 2017, almost immediately after her court of appeals confirmation.[107] In July 2018, after Justice Anthony Kennedy's retirement announcement, she was reportedly one of three finalists Trump considered, along with Kavanaugh and JudgeRaymond Kethledge.[40][108][109]
After Kavanaugh's selection in 2018, Barrett was viewed as a possible nominee for a future U.S. Supreme Court vacancy.[110] After thedeath of Associate Justice Ruth Bader Ginsburg on September 18, 2020, Barrett was widely mentioned as the front-runner to succeed her.[111] On September 26, 2020, Trump announced his intention to nominate Barrett to fill the vacancy created by Ginsburg's death.[8][112]
Barrett's nomination was generally supported by Republicans, who sought to confirm her before the2020 United States presidential election.[113] She was a favorite among theChristian right and social conservatives.[75][114][115] Democrats generally opposed the nomination, and were opposed to filling the court vacancy while election voting was already underway in many states.[113] Many observers were angered by the move to fill the vacancy only four months before the end of Trump's term, as the Senate Republican majority had refused to consider PresidentBarack Obama's nomination ofMerrick Garland in 2016, more than ten months before the end of his presidency.[113][116][117]
In October, theAmerican Bar Association rated Barrett "well qualified" for the Supreme Court opening, its highest rating.[118] The ABA confines its evaluation to the qualities of "integrity, professional competence, and judicial temperament".[119] Barrett's nomination came during aWhite House COVID-19 outbreak. On October 5, SenatorLindsey Graham formally scheduled the confirmation hearing,[120] which began on October 12 as planned and lasted four days.[121][122] On October 22, the Judiciary Committee reported her confirmation favorably by a 12–0 vote, with all 10 Democrats boycotting the committee meeting.[123][124] On October 25, the Senate voted mostly along party lines to end debate on the confirmation.[125] On October 26, the Senate confirmed Barrett to the Supreme Court by a vote of 52–48, 30 days after her nomination and 8 days before the 2020 presidential election.[126][127] Every Republican senator exceptSusan Collins voted to confirm her, whereas every member of theSenate Democratic Caucus[128] voted in opposition.[129] Barrett is the first justice since 1870 to be confirmed without a single vote from the Senate minority party.[130][131]
The nature of her appointment was criticized by numerous Democratic politicians; Senate minority leaderChuck Schumer called it "the most illegitimate process I have ever witnessed in the Senate."[132] Republicans responded that they were merely exercising their constitutional rights, and that accusations of hypocrisy were nothing more than "an unwarranted tantrum fromthe left".[132]
U.S. Supreme Court (2020–present)
JusticeClarence Thomas administers the oath of office to Barrett on October 26, 2020, at the White House alongside PresidentDonald Trump.Chief JusticeJohn Roberts administers the judicial oath to Barrett on October 27, 2020. Justice Barrett's husband, Jesse M. Barrett, holds the Bible.
Barrett became the 103rdassociate justice of the Supreme Court of the United States on October 27, 2020. On the evening of the confirmation vote, Trump hosted a swearing-in ceremony at the White House. As Barrett requested, JusticeClarence Thomas administered the oath of office to her,[131][133][134] the first of two necessary oaths. She took the judicial oath, administered by Chief Justice John Roberts, the next day.[135]
Barrett uses hermaiden and married surnames in public. She has chosen to be called "Justice Barrett" in written orders and opinions of the court,[139] as she did as a Seventh Circuit judge.[140]
Circuit assignment
In November 2020, Barrett was assigned to theSeventh Circuit.[141] This assignment's duties include responding to emergency applications to the Court that arise from the circuit's jurisdiction, either by herself or else by referring them to the full Court for review.[141][142]
Early oral argument participation
Having hiredher allotted four law clerks, Barrett took part in her first oral argument on November 2, hearing the caseU.S. Fish and Wildlife Service v. Sierra Club.[143][144]
On November 4, the Court heardFulton v. Philadelphia, in which the plaintiff,Catholic Social Services, sued the city ofPhiladelphia after being denied a new contract under the city's Fair Practices Ordinance, which bars discrimination inpublic accommodations. TheArchdiocese-affiliated CSS said that for religious reasons it cannot properlyvet potentialfoster parents who aregay couples. CSS argued that underrelevant precedent, the Court should find that CSS as afaith-basedcharity was unfairly singled out, given that the city allows race- anddisability-based exceptions withinfoster-care placements.[145][146] CSS further claimed the law is shown not to be neutral as required by the Court's 1990 decisionEmployment Division v. Smith, which allows the government to enforce neutral and generally applicable laws without having to makeexceptions for individual religions, because the city labeled CSS's motives "discrimination that occurs under the guise of religious freedom."[146][147] According to theNew York Times, Barrett's questions during oral arguments were "evenhanded and did not reveal her position."[148]
In January 2022, the Supreme Court voted to allow the execution of an inmate to proceed in Alabama; the case was decided by a 5–4 vote, with Barrett joining Breyer, Sotomayor, and Kagan in dissent.[164]
Environmental policy
Barrett wrote her first majority opinion inUnited States Fish and Wildlife Service v. Sierra Club, which was decided on March 4, 2021.[160][165][166] Traditionally the first opinion delivered by a new justice reflects the opinion of a unanimous court, but not always. While Gorsuch and Kavanaugh wrote unanimous first opinions, Barrett, like her predecessor Justice Ginsburg, wrote an opinion for a divided court.[160][167][168]
Although Barrett ruled against environmentalists in March, she voted against oil refineries in her first dissent,Hollyfrontier Cheyenne Refining v. Renewable Fuels Association.[169]
LGBT rights and issues
In June 2021, Barrett joined a unanimous decision inFulton v. City of Philadelphia, ruling in favor of aCatholic social service agency that had been denied funding from the City of Philadelphia because it does notadopt to same-sex couples; the ruling also declined to overturnEmployment Division v. Smith, "an important precedent limiting First Amendment protections for religious practices."[170] In the same month, Barrett was among the six justices who rejected the appeal of a Washington State florist whom lower courts had ruled violated non-discrimination laws by refusing to sell floral arrangements to a same-sex couple based on her religious beliefs againstsame-sex marriage, leaving the lower court judgments in place.[171][172][173] In November 2021, Barrett voted with the majority in a 6–3 decision to reject an appeal fromMercy San Juan Medical Center, a hospital affiliated with the Roman Catholic Church, which had sought to deny ahysterectomy to atransgender patient on religious grounds.[174] The Court's decision not to hear the case left in place a lower court ruling in favor of the transgender patient; justices Thomas, Alito, and Gorsuch dissented.[175][176] In November 2023, Barrett voted with the 6–3 majority to decline to hear an appeal of a decision that upheldWashington's ban on conversion therapy for minors, allowing the law to stand; Kavanaugh, Thomas, and Alito dissented.[177][178]
Vaccine requirements
Barrett wrote a concurring opinion inDoes v. Mills, a case challenging Maine's vaccine requirement for health care workers. She was in the majority in the 6–3 decision to deny a stay of the vaccine requirement, explaining that the case had not been fully briefed or argued.[179]
Judicial philosophy, academic writings, speeches, and political views
Many of Barrett's academic writings are about a professed imperative that jurists limit their work to determining the meanings of constitutional and statutory texts, reconciling these meanings with Supreme Court precedent, and using such precedent to mediate among various jurisprudential philosophies.[180]
According to an analysis byUniversity of Virginia law professors Joshua Fischman and Kevin Cope, Barrett was the rightmost Seventh Circuit judge, though not statistically distinguishable from six other Republican-appointed judges on the court.[181] Compared to the other Seventh Circuit judges, she was more conservative oncivil rights issues and less conservative on cases involvingemployment discrimination, labor and criminal defendants.[181] According to a review byReuters, Barrett's Seventh Circuit rulings showed that she mostly sided with police and prison guards when they were accused of excessive force.[182] Due to thejudicial doctrine of qualified immunity, police-officer defendants in many of these cases were shielded fromcivil liability because their actions were deemed not inviolation of clearly established law. Jay Schweikert, who advocates for the Court's or Congress's elimination of qualified immunity,[183] believes that her "decisions all look like reasonable applications of existing precedent."[182][184] LegalcommentatorJacob Sullum argues that while Barrett was on the Seventh Circuit she took "a constrained view of the doctrine's scope."[185]
Textualism and originalism
Barrett is considered atextualist, a proponent of the idea that statutes should be interpreted literally, without considering their legislative history or underlying purpose,[186][187][188][189] and anoriginalist (of theoriginal-public-meaning, rather thanoriginal-intent, variety), a proponent of the idea that theConstitution should be interpreted as perceived at the time of enactment.[186][190][191][192] According to her, "Originalism is characterized by a commitment to two core principles. First, the meaning of the constitutional text is fixed at the time of its ratification. Second, the historical meaning of the text 'has legal significance and is authoritative in most circumstances.'"[190] For the purpose of "describing the disagreement between originalists and nonoriginalists about the authoritativeness of the original public meaning," she refers[190] to a section of a law review article byKeith Whittington, "Originalism: A Critical Introduction",[193] that reads, "Critics of originalism have suggested a range of considerations that might trump original meaning if the two were to come into conflict. From this perspective, fidelity to original meaning is not the chief goal ofconstitutional theory ... Confronted with suitably unpleasant results, the nonoriginalist might posit that the original meaning should be sacrificed. Alternatively, we might think that contemporary public opinion should trump original meaning ... underlying all these considerations is a view that courts are authorized to impose constitutional rules other than those adopted by the constitutional drafters ... the originalist must insist that judges not close their eyes to the discoverable meaning of the Constitution and announce some other constitutional rule to supersede it. It is at that point that the originalist and the nonoriginalist must part ways."[193]
Textualism, Barrett says, requires that judges construe statutory language consistent with its "ordinary meaning": "The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say." According to Barrett, "Textualism stands in contrast topurposivism, a method of statutory interpretation that was dominant through much of the 20th century." If a court concludes that statutory language appears to be in tension with a statute's overarching goal, "purposivists argue that a judge should go with the goal rather than the text." For Barrett, textualism is not literalism, nor is it about rigid dictionary definitions. "It is about identifying the plain communicative content of the words".[194]
Barrett clerked for Justice Antonin Scalia, and has spoken and written of her admiration of hisadherence to the text of statutes and to originalism,[195] writing: "His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they may hold."[196] In one article she quoted Scalia on the importance of the original meaning of the Constitution: "The validity of government depends upon the consent of the governed ... [s]o what the people agreed to when they adopted the Constitution ... is what ought to govern us."[190] In a 2017 article in the law reviewConstitutional Commentary, reviewing a book byRandy E. Barnett, Barrett wrote: "The Constitution's original public meaning is important not because adhering to it limits judicial discretion, but because it is the law. ...The Constitution's meaning is fixed until lawfully changed; thus, the court must stick with the original public meaning of the text even if it rules out the preference of a current majority."[197][198]
According to Barrett, textualists believe that when a court interprets the words of statutes, it should use the most natural meaning of those words to an ordinary skilled user of words at the time, even if the court believes that the legislature intended that the words be understood in a different sense. If the legislature wishes the words of a statute to carry a meaning different from how a non-legislator would understand them, it is free to define the terms in the statute. As Scalia put it, "[A]ll we can know is that [the legislature] voted for a text that they presumably thought would be read the same way any reasonable English speaker would read it." Scalia insisted that "it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawmaker promulgated."[199][200]
Barrett has been critical oflegal process theory, which gives a more expansive role to theory in shaping the interpretation of law than do textualism and originalism.[199][200] She said that one example of the "process-based" approach can be found inKing v. Burwell, in which the Supreme Court, for reasons related to the unorthodox legislative process that produced theAffordable Care Act, interpreted the phrase "Exchange established by the State" to mean "Exchange established by the State or the federal government."[200]
Suspension of habeas corpus
In a journal article, "Suspension and Delegation",[201] Barrett noted that constitutionally only Congress has the authority to decide the terms under whichhabeas corpus may be legitimately suspended.[202] In all but one of the previous suspensions of habeas corpus, Barrett thought that Congress violated the Constitution "by enacting a suspension statute before an invasion or rebellion occurred—and in some instances, before one was even on the horizon."[84][201] In an educational essay, she sided with the dissenters inBoumediene v. Bush after considering historical factors.[203]
Precedent
At her 2017 Senate confirmation hearing for the 7th Circuit Court of Appeals, Barrett said she would follow Supreme Court precedent while on the appellate bench. In 2020, during her nomination acceptance speech at the White House Rose Garden, Barrett said, "Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold";[204][205] she also said judges "must apply the law as written".[206][207] She explained her view of precedent in response to questions at the hearing.[208]
In a 2013 article in theTexas Law Review on the doctrine ofstare decisis, Barrett listed seven cases that she believed should be considered "superprecedents"—cases the Court would never consider overturning. They includedBrown v. Board of Education andMapp v. Ohio (incorporating the Fourth Amendment onto the states),[209] but specifically excludedRoe v. Wade (1973). In explaining why it was excluded, Barrett referenced scholarship agreeing that in order to qualify as "superprecedent", a decision must have widespread support from not onlyjurists but politicians and the public at large to the extent of becoming immune to reversal or challenge (for example, theconstitutionality of paper money). She argued that the people must trust a ruling's validity to such an extent that the matter has been taken "off of the Court's agenda", with lower courts no longer taking challenges to them seriously. Barrett pointed toPlanned Parenthood v. Casey (1992) as evidence thatRoe had not attained this status, and quoted Richard H. Fallon Jr.: "[A] decision as fiercely and enduringly contested asRoe v. Wade has acquired no immunity from serious judicial reconsideration, even if arguments for overruling it ought not succeed."[209][210]
Concerning the relationship of textualism to precedent, Barrett said, "It makes sense that one committed to a textualist theory would more often find precedent in conflict with her interpretation of the Constitution than would one who takes a more flexible, all-things-considered approach."[209] She referenced a study byMichael Gerhardt which found that, as of 1994, no two justices in that century had called for overruling more precedents than Justices Scalia andHugo Black, both of whom were textualists, even though Black was a liberal and Scalia a conservative. Gerhardt also found that during the Rehnquist Court's last 11 years, the average number of times a justice called for the overruling of precedent was higher for textualist justices, with one per year coming from Ginsburg (non-textualist) up to just over two per year from Thomas (textualist). Gerhardt wrote that not all the calls for overruling were related to textualism issues, and that one must be careful in the inferences one draws from the numbers, which "do not indicate either why or on what basis the justices urged overruling."[209]
Affordable Care Act
In 2012, Barrett signed a letter criticizing the Obama administration's approach to providing employees of religious institutions withbirth control coverage without having the religious institutions pay for it, calling it an "assault" to religious liberty.[211]
Barrett has been critical of the majority opinion written by Chief Justice John Roberts inNational Federation of Independent Businesses v. Sebelius (2012), which upheld the constitutionality of the Affordable Care Act'sindividual mandate. She wrote in 2017: "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power."[198][212][211][213]
Abortion
Barrettopposes abortion.[214][215] In 2006, she signed an advertisement placed by St. Joseph County Right to Life, an anti-abortion group, in a South Bend, Indiana, newspaper. The ad read: "We, the following citizens ofMichiana, oppose abortion on demand and defend the right to life from fertilization to natural death. Please continue to pray to end abortion." An unsigned, second page of the advertisement read, "It's time to put an end to the barbaric legacy ofRoe v. Wade and restore laws that protect the lives of unborn children."[216][217][218] In 2013, Barrett signed another ad againstRoe v. Wade that appeared in Notre Dame's student newspaper and described the decision as having "killed 55 million unborn children". The same year, she spoke at two anti-abortion events at the university.[219]
Personal life
Barrett and her family with President Trump on September 26, 2020Barrett with her husband, Jesse, in 2018
In 1999, Barrett married fellow Notre Dame Law School graduate Jesse M. Barrett, a partner at SouthBank Legal – LaDue Curran & Kuehn LLC, in South Bend, Indiana,[220] and a law professor at Notre Dame Law School.[221] Previously, Jesse Barrett had worked as anassistant U.S. attorney for theNorthern District of Indiana for 13 years.[222] The couple live in South Bend and have seven children, two of whom were adopted fromHaiti, one in 2005 and one after the2010 Haiti earthquake.[36][223] Their youngest biological child hasDown syndrome.[224]
According toPolitico, "a copy of Barrett's ballot history from the Indiana Statewide Voter Registration System obtained by POLITICO [shows] Barrett voted in the 2016 and 2018 general elections, and the 2016 Republican primary, though she pulled a Democratic ballot in the 2011 primary."[6]
^Simon, Abigail (July 3, 2018)."These Are Trump's Candidates for the Supreme Court".Time.Archived from the original on July 6, 2018. RetrievedJuly 9, 2018.Coney Barrett has written extensively about Constitutional originalism, a legal tradition that advocates for an interpretation of the Constitution based on the meaning it would have had at the time it was written.
^Barrett, Amy; Garvey, John (January 1, 1998)."Catholic Judges in Capital Cases".Marq. L. Rev.81: 303.Archived from the original on February 14, 2021. RetrievedSeptember 19, 2020.
^Vile, John R."Roman Catholic Diocese of Brooklyn v. Cuomo (2020)". The First Amendment Encyclopedia presented by the John Seigenthaler Chair of Excellence in First Amendment Studies.Archived from the original on December 29, 2020. RetrievedDecember 29, 2020.
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