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Not Just Another Conservative Vote: How Amy Coney Barrett Could Influence the Supreme Court

12 minute read
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To hear Judge Amy Coney Barrett tell it, she is the intellectual heir to the late Justice Antonin Scalia. “His judicial philosophy is mine, too,” Barrett said at her nomination ceremony at the White House Rose Garden on Sept. 26.

In important ways, that is true. Like Scalia, Barrett practices originalism, which interprets the Constitution according to what adherents claim is the framers’ intent, and textualism, which interprets laws based on the meaning of the words rather than the intentions of the legislators.

But there is a crucial difference between the two: style. Scalia could be testy and brutal in his opinions, castigating ideological opponents in an attempt to dominate the argument. Barrett, by contrast, has built a reputation of being more diplomatic. Her friends and former students, clerks and colleagues describe a woman confident in her own legal analysis, willing to engage and debate on even the smallest details of cases, but unfailingly polite. Of the current justices “she’d be most like Scalia,” in judicial philosophy, says her mentor, DC Circuit Court of Appeals Judge Laurence Silberman. But, he says, “Her rhetoric would be much less combustible.”

That, say supporters and detractors alike, may make Barrett a more powerful advocate of Scalia’s legacy on an already conservative court. Whereas Scalia famously shared a friendship with the late liberal Justice Ruth Bader Ginsburg, whom Barrett has replaced, his irascible demeanor sometimes alienated even his fellow conservatives. Barrett’s collegiality, in contrast, may turn out to be more efficacious, helping her to both unite the six justices on the right and shape the language of the majority ruling.

After being confirmed by the Senate on a near party-line vote on Oct. 26, Barrett joins a solid conservative majority— potentially creating the most conservative court since the mid-1900s. Her philosophy places her further to the right than Chief Justice John Roberts, who had become the ideological middle of the bench. She could bring the less rigid conservatives along with her, but doing so may require a more deft touch than Scalia’s. Julie Gunnigle, a liberal prosecutor and one of the judge’s former students, says that Barrett’s combination of ideology and courtesy makes her “more effective, more dangerous,” positioning her to influence not just votes but also the language of opinions that become the law of the land.

President Trump Announces His Supreme Court Nominee To Replace Justice Ginsburg
Seventh U.S. Circuit Court Judge Amy Coney Barrett (R) speaks after U.S. President Donald Trump announced that she will be his nominee to the Supreme Court in the Rose Garden at the White House on Sept. 26, 2020.Chip Somodevilla—Getty Images

Barrett’s days often begin at the crack of dawn, perhaps a necessity for a mother of seven children with a demanding career. Two of Barrett’s and her husband Jesse’s children are adopted from Haiti and the youngest has Down syndrome. With a lot to juggle at home, the Barretts take turns going to work out in the morning at a high intensity, CrossFit-style gym they both favor, and Amy takes the early shift, with classes sometimes starting in the 5AM hour, friends who go to the same gym say. “Our children are my greatest joy, even though they deprive me of any reasonable amount of sleep,” Barrett said after her nomination.

Friends say the Barretts are active in their community and Amy is an involved parent, and the Barretts’ house often has a motley assortment of kids coming around to play. At the White House, Barrett described herself as both a judge and a “room parent, carpool driver, and birthday party planner.” Barrett herself was the eldest of seven kids, and she grew up in New Orleans, Louisiana where the seeds of her interest in law and her religious beliefs were planted early: her father is an attorney and a deacon. Now, Barrett has brought some New Orleans flavor to South Bend: she is known for her annual Mardi Gras parties and Creole cooking. And she and Jesse, a lawyer in private practice, are a regular presence at Notre Dame football tailgates.

Barrett was a passionate teacher during her career as a professor at Notre Dame Law School. Barrett’s former student Laura Wolk remembers one year, she was advancing an argument for textualism in Barrett’s statutory interpretation class. Barrett pushed back, poking holes in Wolk’s defense of the theory despite her own belief in textualism. “She’s very tough,” says Wolk. Barrett’s former colleague at Notre Dame and friend Jeffrey Pojanowski puts it more bluntly: “She doesn’t like bad arguments.” Former clerks say the same holds true at the court. Pardis Gheibi, who clerked for Barrett from 2019-2020, says Barrett would spend “hours, and hours, and hours” dissecting “legal arguments and legal questions that would bore even lawyers to death.”

Barrett’s path to a Supreme Court nomination began nearly four years ago. During the 2016 transition period, a team including Trump’s first White House counsel Don McGahn and former executive vice president of the Federalist Society Leonard Leo drafted a list of lawyers to nominate for appellate judicial vacancies. According to a source familiar with the process, McGahn knew of Barrett from his connections to Notre Dame, and Leo was familiar with her because of her clerkships for Silberman and Scalia, a celebrated combination for budding conservative lawyers. They added Barrett to their list, and she was nominated to the Seventh Circuit the following year.

That, according to the source, is when she attracted the president’s attention. Trump noticed her during the contentious Seventh Circuit hearing, when in questioning Barrett about how her Catholic faith would affect her decisions, California Sen. Dianne Feinstein said, “The dogma lives loudly within you.” The moment went viral and made Barrett a household name for Fox News viewers. Trump added her to the Supreme Court shortlist later that year, in the fall of 2017.

After Barrett’s confirmation to the Seventh Circuit, the New York Times reported that she and her husband are members of People of Praise, an ecumenical faith community. According to the Times, the group requires a lifelong oath of loyalty and teaches that women are submissive to men. Neither Barrett nor People of Praise have confirmed her membership. “If they’re part of a movement that subjugates women, they’re really bad members of it,” says O. Carter Snead, law professor at Notre Dame and a friend of the Barretts. “If anyone is subjugated in that marriage, it’s Jesse.”

In her three years on the U.S. Court of Appeals for the Seventh Circuit, Barrett was known for being a staunch conservative and courteous colleague. She grappled with several hot-button political issues, and her opinions gave Republicans much to applaud. She demonstrated a willingness to curtail the rights held in the landmark decision Roe v. Wade. She championed a muscular reading of the Second Amendment, voted to uphold the Trump Administration’s “public charge” rule—which makes it more difficult for immigrants seeking green cards if they rely on public benefits—and wrote an influential decision that paved the way for students accused of sexual assault to sue their schools over the handling of their cases. In writings before she took the bench, she criticized the Supreme Court’s decision to uphold the Affordable Care Act. The Court will once again consider the constitutionality of the Obama-era law just one week after the election, now with Barrett on the bench.

Liberty University students with signs in support of the nomination of Judge Amy Coney Barrett outside the Supreme Court in Washington, Sept. 26, 2020. (Erin Schaff/The New York Times)
Liberty University students with signs in support of the nomination of Judge Amy Coney Barrett outside the Supreme Court in Washington, on Sept. 26, 2020.Erin Schaff—The New York Times/Redux

Barrett quickly became the woman to beat for Ginsburg’s seat after Ginsburg’s death on September 18. Barrett was backed internally by White House counsel Pat Cipollone, three sources familiar with the process say, and by Vice President Mike Pence, two of the sources add. On the questionnaire Barrett submitted to the Senate Judiciary Committee, she wrote that Trump offered her the nomination when they met on Monday September 21. That was just three days after Ginsburg died and almost a week before he announced the choice publicly, indicating he never seriously considered any other candidate.

How effectively Barrett advances a conservative ideology from a seat formerly occupied by the liberal icon Ginsburg could depend on how she deploys the charm and intellect that has earned plaudits throughout her career.

Barrett’s “combination of smart and nice will be scary for liberals,” Noah Feldman, a liberal Harvard Law School professor who clerked at the Supreme Court the same year as Barrett and supports her nomination, wrote in Bloomberg Opinion. Feldman noted that Scalia “managed over the years to alienate Justice Sandra Day O’Connor, which may conceivably have helped produce more liberal outcomes as she moved to the left.”

That’s where demeanor and diplomacy come in. Justices discuss cases and assign opinions in a delicate back and forth. “There’s no question that when you like someone on the high court, and someone is affable and easy to approach, you’re more likely to have ongoing conversations with them about cases,” says a source familiar with Barrett’s nomination process. “[Barrett’s] personality will create approachability.” Those who know Barrett say her natural interpersonal skills could help wrangle conservatives like Roberts, Brett Kavanaugh or Neil Gorsuch and reconstitute a powerful conservative bloc at the heart of the court.

And Barrett’s confirmation marks an essential change in the dynamic of the court. Under the previous 5-4 conservative majority, the swing vote on the right amassed enormous power, which Roberts wielded after Justice Anthony Kennedy retired in 2018. After Barrett’s confirmation, conservatives could lose a vote and still win a majority decision. That’s a major blow to Roberts’ influence and to the liberal bloc’s chances for success. Roberts had “a huge amount of leverage,” says Michael A. Bailey, professor at Georgetown University, and the liberal justices had been able to gain wins by peeling off just one conservative. “That’s really out the window now because you [would] need two people to be liberal, and the odds of that obviously are much lower.”

By pulling the center of the court to the right, Barrett’s confirmation ensures that the drama in most decisions will be in how the six conservatives craft the ruling. “It’s the liberals in exile,” says Melissa Murray, professor at New York University School of Law. “The real action is going to be in how the extreme positions and both sides of the conservative wing are going to work together.” That potentially marks a concentration of power in Barrett, with her unique blend of philosophy and tact. Ideologically, “Barrett would be on that far right wing of the court with [Clarence] Thomas and [Samuel] Alito, but she’s likely not temperamentally an extreme in the way the two of them are,” says Murray. “She might be able to work the middle, where the other conservatives are, even though her position is not necessarily of moderate conservatism.”

The Sept. 26 Rose Garden ceremony at which Barrett was nominated by Trump turned out to be a super-spreader event for COVID-19, throwing an already unsettled election season into greater doubt. (Despite multiple attendees coming down with the virus after the Sept. 26 ceremony, Trump once again hosted an event on the White House lawn for Barrett after her confirmation one month later.)

Barrett was confirmed by a 52 to 48 vote, with the support of every Republican senator except for Susan Collins of Maine, and without the support of a single Democrat. The highly partisan process was accelerated before Election Day despite the virus’ march through the halls of Congress and the West Wing— at least two Republicans on the Senate Judiciary Committee tested positive for COVID-19, Sen. Mike Lee of Utah and Sen. Thom Tillis of North Carolina, both of whom attended the Rose Garden event. Democrats called to slow down, arguing that pandemic safety precautions and sick senators necessitated a longer process, to no avail.

Both sides understand the stakes of the moment. Furious over what they perceive as Republicans’ hypocrisy in refusing to hold hearings for Barack Obama’s Supreme Court nominee Merrick Garland in 2016 but then pushing Barrett through on an even faster timeline, Democrats are threatening court packing— adding more justices to the Supreme Court— in retaliation. Both moves are broadly unpopular. A majority of Americans wanted the winner of the Nov. 3 presidential election to choose Ginsburg’s replacement, according to multiple polls, and more Americans oppose expanding the court than support it.

In this fraught context, Trump is calling on the Supreme Court to adjudicate election-related questions, claiming without evidence the election will be a “fraud.” Cases are already winding their way up to the Supreme Court over changes to state election rules. In a national election with widespread mail-in voting, a potentially prolonged vote count and an incumbent already casting doubt on the results, it’s not hard to imagine scenarios in which the Supreme Court might have to settle contested results in critical states.

That’s a situation the justices and the American public surely dread. But it might be one the nation soon faces. With her confirmation just eight days before the election, Barrett will experience an extraordinary introduction to the Supreme Court. She could hold the power to affect the outcome of an acrimonious presidential election, women’s reproductive rights, health care coverage, climate change, and issues that affect millions of Americans.

And that would be just the start. Whatever her effect on other Justices, Barrett’s influence could be felt for a generation. If the 48-year-old judge serves until she’s Ginsburg’s age, she’ll be on the court until 2059.


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Write to Tessa Berenson at tessa.Rogers@time.com