What Trump pick Amy Coney Barrett could mean for future of the Supreme Court

Judge’s legal approach is to look at what constitutional language meant when adopted and zero in on the text of legislation, rather than interpret lawmakers’ purpose

If confirmed to the Supreme Court, Amy Coney Barrett could culminate a decadeslong quest to ensure a conservative imprint on American law, affecting the role of government, the rights of individuals and the interpretation of such long-debated constitutional terms as equal protection, due process of law and cruel and unusual punishment.

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Most Supreme Court appointees since 1969—15 of 19—were nominated by Republicans, but conservatives have fallen short of fully displacing numerous progressive legal doctrines that took hold in the 1930s and flowered in the 1950s and ’60s under Chief Justice Earl Warren. Since that era, liberals have largely maintained a durable minority of four votes, slowing the court’s move to the right and sporadically able to secure 5-4 victories when a single conservative’s views overlapped their own.

TRUMP NOMINATES AMY CONEY BARRETT TO SUPREME COURT

The death of Justice Ruth Bader Ginsburg gave conservatives an opportunity to cement their dominance. Judge Barrett, whom President Trump picked to fill the vacancy on Saturday, appears tailor-made for a mission many conservatives hope will redefine constitutional interpretation.

A longtime member of the Federalist Society, which has nurtured generations of conservative lawyers for prominent roles in government, academia and the courts, Judge Barrett earned a law degree from Notre Dame and honed her views through clerkships with Judge Laurence Silberman and Justice Antonin Scalia, leading lights of the conservative legal movement. She later joined Notre Dame’s law faculty and produced a stream of scholarship that established her as a prominent voice in conservative legal thinking.

Like Justice Scalia, Judge Barrett is known as an originalist and a textualist—that is, she applies the Constitution according to her understanding of what its language meant when adopted, and when interpreting statutes she zeroes in on the text of legislation rather than the purpose lawmakers were trying to achieve.

“Speculating about congressional desires is a dicey enterprise, which is one reason among many that we should stick to the text,” Judge Barrett wrote earlier this month. She was dissenting from a decision that allowed a defendant who hadn’t been sentenced before President Trump signed a law reducing some sentences to benefit from the law’s more lenient punishments.

President Donald Trump walks along the Colonnade with Judge Amy Coney Barrett after a news conference to announce Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/A

Originalism and textualism have been championed by conservatives as methods to rein in liberal jurisprudence that reads constitutional rights expansively.

Judge Barrett’s scholarly and judicial record suggests her jurisprudence would produce conservative results. As a result of a third Trump appointee, “There could be some lean years, more lean years for progressives,” said former Sen. Russ Feingold (D., Wis.), president of the liberal American Constitution Society. At age 48, Judge Barrett could serve through mid-century.

Nominated by Mr. Trump to the Chicago-based Seventh U.S. Circuit Court of Appeals in 2017, Judge Barrett was confirmed after a contentious hearing where some Democratic senators questioned whether her Catholic faith would intrude on secular legal decisions.

“It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law,” she said.

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Pressed by Sen. Dianne Feinstein (D., Calif.) to say whether she would uphold Roe v. Wade, the 1973 decision recognizing a woman’s right to end a pregnancy, then-Prof. Barrett said, “I’m being considered for a position on a court of appeals, and there would be no opportunity to be a no vote on Roe.”

On the Supreme Court, which alone has the power to reconsider its precedents, there might be. “If we put another two or perhaps three justices on, that will happen,” then-candidate Trump said in a 2016 debate when asked about overturning the decision. “And that will happen automatically, in my opinion, because I am putting pro-life justices on the court.”

Judge Barrett hasn’t written an opinion on abortion but has cast votes indicating she is, at minimum, skeptical of the scope of rights as Justice Ginsburg and other liberals have seen them.

Last year, Judge Barrett was one of five judges to dissent when the full Seventh Circuit declined to reconsider a three-judge panel’s ruling that blocked a parental-notification law in Indiana. The dissenters questioned the propriety of federal courts blocking state abortion laws before they go into effect.

In 2018, she joined a dissent expressing doubts about a ruling that struck down an Indiana provision barring abortion if a woman wants to end a pregnancy solely because of the sex or disability of the fetus. None of the Supreme Court’s past abortion rulings held that states were powerless to prevent abortions designed to choose the sex, race and other attributes of children, the dissenters argued.

Judge Amy Coney Barrett speaks after President Donald Trump announced Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

The Supreme Court has been on a rightward trajectory particularly since the conservative Justice Samuel Alito succeeded center-right Reagan appointee Sandra Day O’Connor in 2006. The court’s conservative wing has outvoted liberals to carve out religious exemptions from federal laws; to strike down campaign-finance regulations as violations of the First Amendment; and to allow gerrymanders under the view there was no way to determine when a partisan legislature had gone too far.

In recent years, Chief Justice John Roberts has been the conservative most likely to join the liberal wing in a 5-4 vote—such as in helping invalidate a Louisiana abortion restriction in the last court term—but he isn’t the only one. Justice Clarence Thomas provided a fifth vote to liberals in a 2015 decision letting Texas exclude the Sons of Confederate Veterans from a commemorative license-plate program, notes John Malcolm, director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation.

“At any given time, the liberal bloc of the court has been able to peel away a justice from the conservative bloc,” Mr. Malcolm said. With a Justice Barrett, “the liberal bloc can peel one of those justices away, but...you still have a 5-4 majority for the conservatives.” Thus, a third Trump appointee, after Justices Neil Gorsuch and Brett Kavanaugh, could lock in conservative outcomes across the board.

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Judge Barrett’s known views fall to the right of the two prior Trump appointees, and somewhat to the left of Justices Thomas and Alito, according to an analysis of judicial ideology by researchers at Washington University in St. Louis and the University of Michigan. As a result, the court’s “median justice,” currently Chief Justice Roberts, would shift rightward to Justice Kavanaugh, said one of the study’s authors, Lee Epstein, a political scientist and law professor at Washington University.

Still, once appointed to their life-tenured seats, some justices have deviated from their ideological paths. Justice Ginsburg’s predecessor, Justice Byron White, an appointee of President Kennedy, sometimes joined conservatives, for example in dissent from Roe. Justice David Souter, appointed by President George H.W. Bush, failed to perform an expected about-face from the liberal champion he succeeded, William Brennan.

A central issue for a 6-3 court would be how often—and how quickly—it might move to reconsider some of the court’s past rulings that are viewed with disfavor in conservative legal circles. Justices cannot overrule past precedent in a vacuum because they want to go in a new direction. Litigants would first have to bring cases that raised such issues, and the court would have to agree to hear them.

It’s uncertain how a new-look court would approach stare decisis, the legal doctrine that promotes stability in the law by adhering to precedent, even if later-arriving judges would have decided the issue differently. The phrase is Latin for standing by what has been decided.

Judge Amy Coney Barrett listens as President Donald Trump announces Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

Accustomed to playing defense, liberal justices have been asserting the sanctity of precedent for years. “Respecting stare decisis means sticking to some wrong decisions,” Justice Elena Kagan wrote in a 2015 opinion. “Correct judgments have no need for that principle to prop them up.”

Chief Justice Roberts has followed some precedents he says were wrongly decided, asserting that a swing in legal interpretations with each change in personnel would make the court resemble a political institution rather than a judicial body. By contrast, Justice Thomas has argued that precedents should be discarded if they run counter to his view of the Constitution’s original meaning.

Judge Barrett has at times been critical of stare decisis. In a 2003 law review article, she suggested the doctrine can deprive individuals of due-process rights by making it difficult to challenge legal precedents they believe are wrong.

Although Judge Barrett has a limited judicial record, some of her opinions, as well as her writings as a law professor, help flesh out her views. In one key contrast with Justice Ginsburg, Judge Barrett has voiced a more expansive reading of the Second Amendment’s protections of the right to bear arms.

Supreme Court 5-to-4 decisions in 2008 and 2010 recognized an individual’s right to keep a handgun for self-defense. The court has declined to take up a major gun case ever since, while lower courts upheld the vast majority of state and local laws regulating arms and ammunition, even though four justices—Thomas, Alito, Gorsuch and Kavanaugh—are known to hold broad views of the Second Amendment.

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Last year, Judge Barrett opposed a categorical ban on gun possession by convicted felons, dissenting in a case involving a white-collar defendant convicted of Medicare fraud. She said the government should have to demonstrate that felons are actually dangerous before stripping them of their right to own a gun.

“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” she wrote.

Her Second Amendment test in that case, by emphasizing the importance of historical practices, could make it harder for gun regulations to pass muster than under the approach used by most lower courts, which examines whether the regulation burdens a Second Amendment right and, if so, whether the burden is justified by public-safety concerns.

Elsewhere, Judge Barrett’s opinions have shown a belief that the executive branch has wide latitude in setting immigration policy. She wrote in a dissent this year that the Trump administration had the authority to enforce a rule that makes it easier to deny limited-income immigrants residency because they might use public-assistance.

She noted that critics have labeled the administration’s approach as too harsh, but the same could be said about the immigration laws passed by Congress, she said, adding: “Litigation is not the vehicle for resolving policy disputes.”

In a 2019 case, after a consular officer denied a visa to a Yemeni woman whose husband was a U.S. citizen, Judge Barrett wrote a majority opinion rejecting a challenge to the consular officer’s decision. She said courts have almost no room to second-guess those determinations under federal law, making consular decisions unreviewable. Dissenters argued that the husband had a due process right at least to know the factual basis for excluding his wife.

Like Justice Scalia’s, Judge Barrett’s approach to criminal procedure could sometimes benefit defendants through strict enforcement of constitutional rights to confrontation of prosecution witnesses and protection from unreasonable searches.

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But she has been reluctant to let federal judges set aside state-court convictions because of alleged constitutional deficiencies, saying federal courts must be deferential to state criminal proceedings.

In the case of a man convicted of attempted murder, she acknowledged that Indiana prosecutors had withheld information that would have helped his defense, but maintained in a dissent that Indiana courts had not been so egregiously wrong as to justify reversing the conviction.

At the other end of the spectrum, Judge Barrett has voted to suppress evidence for police violations of suspects’ rights. She wrote an opinion tossing a conviction for unlawful gun possession, saying an anonymous 911 call from a teenager didn’t give police reasonable suspicion to block a car in a parking lot where the gun was found.

And in yet another case, she said Drug Enforcement Agency agents wrongly searched an alleged heroin dealer’s house based on consent they got from a woman in a bathrobe who they assumed lived there but actually didn’t.

“The officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them,” Judge Barrett wrote. Under the Fourth Amendment, she concluded, the agents had conducted an unreasonable search.