While acknowledging on the NPR program “On Point” that “it’s clearly a good result that these millions of Americans won’t lose their tax subsidies,” she tore apart the decision, saying, “The dissent has the better of the legal argument.”
Barrett’s response to the ruling — along with her assertion that in a 2012 case, “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute” — endeared her to conservatives. It also won her the admiration of President Trump, who on Saturday nominated her to fill the seat of the liberal icon Justice Ruth Bader Ginsburg, who died earlier this month.
To many Democrats, however, Barrett’s conservative legal views and her closeness to her former boss and mentor, the conservative icon Justice Antonin Scalia, have raised concerns that she will push the court further to the right in ways that could be difficult to reverse for years or even decades. Scalia, who died in 2016, wrote the dissent that Barrett praised.
Now, these two clashing views of Barrett will be at the center of the nation’s attention. She will be grilled by members of the Senate Judiciary Committee in hearings being rushed by the Trump administration, which wants her confirmed before Election Day.
While Republicans appear to have the votes to elevate her from her position on the U.S. Court of Appeals for the 7th Circuit, which covers Illinois, Indiana and Wisconsin, Democrats hope concerns about her record will help tip both presidential and congressional races in their favor — and that they could raise sufficient questions to delay her nomination until after the election.
For Democrats, the examination of Barrett before a potential audience of millions is a chance for a do-over after their relatively brief review of her 2017 nomination by Trump to her current seat. That hearing is mainly remembered for the way Sen. Dianne Feinstein (D-Calif.) sought to make Barrett’s Catholicism an issue, saying that she was concerned that “the dogma lives loudly within you.”
Barrett pushed back strongly, saying she would never let her religion influence her decisions. Some Democrats scoffed at the assertion, but Republicans were galvanized to defend Barrett, printing dogma slogans on T-shirts and dismissing the idea that she would let her faith affect her legal judgment.
Barrett’s rise has coincided with Republican efforts to take advantage of their control of the Senate to reshape the Supreme Court, a legacy that could far outlast Trump. She would be a capstone of such a strategy: If Barrett, 48, is confirmed, her vote on cases involving health care, abortion, immigration, gun control and many other issues could prove decisive.
She has a compelling personal story that has drawn bipartisan appreciation. The eldest of seven children, Barrett was raised in Louisiana by her father, an oil industry attorney, and her mother, a homemaker. A stellar high school student, she was an English undergraduate at Rhodes College in Memphis and then received a degree from the University of Notre Dame Law School, where she edited the law review and was first in her 1997 class.
Barrett, who lives in South Bend, Ind., and has taught at Notre Dame since 2002, was named “Distinguished Professor of the Year” on three occasions, according to the school’s website.
In 1999 she married another Notre Dame Law School graduate, Jesse M. Barrett, and they have seven children, including two adopted from Haiti. Their youngest child has Down syndrome. Barrett said last year at the Notre Dame Club in Washington that she had “anxiety about balancing kids and work,” but with help from her husband and other family members, she felt she could handle both roles. She added: “What greater thing can you do than raise children? That’s where you have your greatest impact on the world.”
Barrett has said she relies deeply on her strict adherence to her Catholic faith, even as she stresses that it does not affect her judicial decisions. She is a member of a lay-led Christian group called People of Praise, which began in South Bend and has about 2,000 members around the world. The group is charismatic, similar to the demonstrative style of Protestant Pentecostal gatherings, and believes that dark forces abound in the world. The group’s female leaders were called “handmaids” before the Margaret Atwood novel gave that phrase new meaning.
Barrett directly addressed the issue of judges influenced by their faith in a 1998 paper she co-wrote titled “Catholic Judges in Capital Cases,” which has since become one of the most scrutinized works of her career. Barrett co-wrote that Catholic judges are obligated to follow the law but also “to adhere to their church’s teachings on moral matters.”
The article argued that Catholic judges opposed to the death penalty on religious grounds should recuse themselves from cases that would require sentencing someone to death. Her co-author was John Garvey, now the president of Catholic University, who declined to comment. In an op-ed published by The Washington Post on Friday, Garvey wrote: “We argued that recusal would be the appropriate course of action for a Catholic judge who felt that his or her religious beliefs were in conflict with upholding the law.”
After graduating from Notre Dame, Barrett came to the attention of Judge Laurence H. Silberman, who typically hired law clerks from his alma mater, Harvard Law, with a few others from Yale and the University of Chicago. He was convinced by two Notre Dame professors, both fellow Harvard graduates, to consider Barrett to join his chambers as a clerk at the U.S. Court of Appeals for the D.C. Circuit.
“She has brilliant analytic skills combined with an innate sense of decency and kindness,” Silberman said in an interview. “And she was a strong believer in judicial restraint,” referring to the theory that judges should follow the Constitution, not their own views.
Silberman said he was so impressed that he recommended her to be a clerk for Scalia, a conservative icon on the Supreme Court, for whom she served from 1998 to 1999.
In an interview with the Notre Dame television station, Barrett said she relished going “toe to toe” with Scalia, recounting how “he treats you like an equal in these discussions so you really have to be up to the task.” He instilled in her the need to “see things from every side” as she wrote drafts of opinions that he eventually signed.
In 2000, Barrett began working for the Washington law firm of Miller, Cassidy, Larroca & Lewin. She then taught at George Washington University Law School before returning in 2002 to her alma mater to eventually become a professor at Notre Dame Law School, focusing on federal courts.
Barrett, meanwhile, issued a stream of scholarly writings that have gained new attention in light of her ascent. Her view on stare decisis — the principle that courts should be guided by legal precedent — has spurred concerns that she would be open to revisiting Roe v. Wade, the landmark abortion rights case.
In a 2013 article for the Texas Law Review, she wrote that “the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.” She did not explicitly express an opinion on Roe v. Wade but argued that jurists should not be bound by precedent in all cases. All the current justices agree that stare decisis does not mean precedent is never overturned.
“I tend to agree with those who say a justice’s duty is to the Constitution,” she wrote, “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.”
After Barrett was nominated for a U.S. Court of Appeals seat, much of the hearing focused on whether her Catholicism would unduly influence her decisions. Feinstein, in expressing her concern that Barrett would be too motivated by the faith’s dogma, focused on abortion rights. The senator said she assumed she was nominated because “you would be a no vote on Roe.”
Barrett responded that because she was being considered for a position on a court of appeals and not the Supreme Court, “there would be no opportunity to be a no vote on Roe.”
Barrett also was asked about the article she co-wrote two decades earlier on Catholic judges. While she said she would write the article differently with the hindsight of 20 years, she said she stood by “the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires.”
Barrett was confirmed on Oct. 31, 2017, by a vote of 55 to 43, with the support of three Democrats.
The influence of Scalia has been a continuing thread throughout Barrett’s career. Scalia, who was said to have viewed his clerks as interchangeable, viewed Barrett in a different class. At her investiture for the appeals court, one of Barrett’s co-clerks from that term remembered Scalia having said, “Isn’t Amy terrific?”
Scalia is lionized by conservatives for his transformative career on the court; Barrett, who like Scalia considers herself an “originalist” in constitutional interpretation, would be his first protegee to attain a seat on the high court.
In her nearly three years on the U.S. Court of Appeals, Barrett has been involved in about 100 rulings. While she wrote some of the opinions, she joined many others without comment. In general, her decisions have heartened conservatives and alarmed liberals.
She joined a dissent about a ruling that found unconstitutional an Indiana law banning abortions sought because of the sex or disability of a fetus. The panel ruled, as it said other courts have, that Supreme Court precedent did not allow questioning of a woman’s reasoning for an abortion before viability. Barrett then joined with three other judges to declare their disagreement.
“Does the Constitution supply a right to evade regulation by choosing a child’s genetic makeup after conception, aborting any fetus whose genes show a likelihood that the child will be short, or nearsighted, or intellectually average, or lack perfect pitch — or be the ‘wrong’ sex or race?” said the dissent joined by Barrett.
Barrett also objected to her court blocking another Indiana abortion restriction, which required parental notification when a girl younger than 18 seeks an abortion, even if she had asked a court to provide consent, instead of her parents. The judge would have to provide notification unless he or she found it was not in the juvenile’s “best interests.”
Barrett was not on the panel that had kept the law from going into effect, and her involvement was not on the merits of the case. She joined with four other judges, though, to say that the full circuit should decide whether it was right to keep the law from being enforced while it was being challenged.
“Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure,” wrote Judge Michael Stephen Kanne, whose dissent Barrett and the others joined. In June, the Supreme Court sent the case back to lower courts to reconsider in light of its decision to strike a restrictive Louisiana abortion law.
Praise from conservatives
In a decision involving gun rights, Barrett won praise from conservatives concerned that the Second Amendment’s protections have not been properly respected by the Supreme Court, and also for her constitutional approach. Her decision relied heavily on the “originalist” approach to constitutional interpretation favored by her old boss Scalia and the court’s most conservative members.
Barrett dissented from a panel decision that upheld federal and Wisconsin state laws banning felons from having guns. They were being challenged by a man convicted of a nonviolent crime, mail fraud. Two judges on the panel said such laws are reasonably related to the government’s important goal of keeping guns out of the hands of those convicted of serious crimes.
But Barrett, launching a deep dive into the country’s past, said legislatures at the time of the founding took away gun rights from those who were believed to be a threat, not just convicted of certain crimes. “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous,” she wrote.
Founding-era legislatures imposed restrictions on civic rights such as voting and jury service, Barrett wrote, “not to individual rights like the right to possess a gun.”
In June, Barrett was the lone dissenter when a panel of her court upheld an order that blocked the Trump administration’s new “public charge” rule, which makes it more difficult for noncitizens to receive a green card if future public assistance will be needed.
Two judges on the panel upheld a lower court’s ruling that said the administration had exceeded its authority under the statute.
Barrett said that was wrong and that Congress amended the law in 1996 to “increase the bite of the public charge determination.” The challengers disagreed with the administration’s choices, Barrett said, but “litigation is not the vehicle for resolving policy disputes.”
Less than a year after Barrett began her service on the federal bench, the moderate Justice Anthony M. Kennedy retired, and Trump seriously considered Barrett as a replacement. Privately, she was relieved when the president instead nominated Brett M. Kavanaugh, according to Silberman.
“She said she thought Brett was the better choice,” Silberman recalled, saying Barrett knew “she had nowhere near as much experience on the court of appeals as he did.” Barrett’s remarks, he said, show that she is “unlike most of us, not ruthlessly ambitious.”
Now, with almost three years of experience as a judge, she is preparing for another round of hearings on her qualifications and the possibility that she could spend decades on the Supreme Court.
If confirmed, she would return to the place where she was guided by Scalia, and potentially shift the institution in the opposite direction of the person she would replace, Ginsburg. She would serve with the same chief justice, Roberts, whom she criticized in two cases upholding Obamacare — and might be involved in deciding the fate of the Trump administration’s challenge to that program.
In the 2015 radio interview in which she spelled out her disagreement with Roberts, Barrett also alluded to the difficulty of assessing where a justice will end up on the philosophical scale.
“I think that the chief justice, when he was appointed, many thought he would be very, very conservative,” she said. “And I think he showed himself to be a much more of a moderate.”
Alice Crites contributed to this report.