A few days before the 2016 presidential election, when all signs pointed to a Hillary Clinton victory over Donald Trump, Notre Dame law professor Amy Coney Barrett offered a few thoughts on how the winner of the race could shape the Supreme Court.
After commenting at length on the type of justices Clinton might nominate, Barrett finally said to her audience, “What would we have in a Trump court?”
With a chuckle, she answered her own question, “Who knows?”
Four years after Barrett’s lecture at Jacksonville University’s Public Policy Institute, we now know.
President Trump said he will announce his Supreme Court nominee Saturday following the death of Justice Ruth Bader Ginsburg. And after serving only three years as a federal judge on the Chicago-based 7th U.S. Circuit Court of Appeals, the frontrunner for the seat appears to be Barrett.
Barrett landed on the appellate court thanks to a 2017 nomination from Trump. Promoted by a powerful network of social conservatives and the like-minded Federalist Society, Barrett was also considered by the president in 2018 for retiring Justice Anthony Kennedy’s seat. Trump tapped Brett Kavanaugh instead.
This time around, Barrett is the favorite of Marjorie Dannenfelser, the president of the influential anti-abortion group Susan B. Anthony List, according to a source. She told Trump as much when they spoke.
Career on fast track
If Trump picks Barrett, it will cap her fast-track legal career nurtured by relationships that began when Barrett was a member of Notre Dame’s law school class of 1997. She is a self-declared “originalist” in the mold of the late Supreme Court Justice Antonin Scalia, for whom she clerked, which means she seeks to interpret the U.S. Constitution strictly as its authors meant it.
Born and raised in New Orleans — where she picked up Louisiana cuisine cooking skills praised by colleagues who attended her Mardi Gras parties — Barrett moved to South Bend after graduating from Rhodes College in Memphis in 1994.
Barrett landed at Notre Dame at a time when the law school faculty was expanding to include more professors who had clerked on the Supreme Court, especially with Justices Clarence Thomas and Scalia.
“The path to the Supreme Court is one very much marked by mentorship and friendship and … the experience of the faculty members who are willing to guide students,” said Notre Dame Law School Professor Paolo Carozza, who met Barrett when she was in law school. “…That’s how I understand what it would mean for her to have been groomed.”
After graduation, that pipeline led her to clerkships with the nation’s leading conservative judges, first with Laurence Silberman, now a senior judge for the U.S. Circuit Court of Appeals for D.C. and then with Scalia.
But networks can go only so far.
Said Notre Dame Law School Professor O. Carter Snead, “There’s just consensus: Amy Barrett, is the best student, the smartest and most talented person to ever come through the University of Notre Dame Law School.”
After clerking for Scalia in 1998, she did a stint in private practice. Barrett served in the army of lawyers who helped George W. Bush in his successful 2000 presidential recount battle against Al Gore.
She then went back to academia.
It was a move she had thought about previously, recalled Notre Dame Law School Professor Nicole Garnett, who met Barrett when Garnett was clerking for Thomas and Barrett was with Scalia. “Like many of the young lawyers who we clerked with on the Supreme Court, Judge Barrett was considering the legal academy when I met her in 1998.”
After a stop at the George Washington University Law School, in D.C., Barrett returned to Notre Dame’s law school in 2002.
Said Garnett, “She was open to teaching at many different law schools. I am sure that Notre Dame was appealing to her as a young Catholic woman, as it was to me.”
Trump is pushing for a confirmation vote before the Nov. 3 election. Catholic, evangelical and anti-abortion voters in swing states are a potential key to beating Democratic nominee Joe Biden.
Barrett is aware, Carozza said, that if she is nominated, it “would arise in the context of a great deal of political and ideological polarization in our country.”
Barrett, 48, who does Crossfit workouts, would be the youngest member of the Supreme Court. With husband Jesse — a former federal prosecutor — they are the parents of seven children, with two adopted from Haiti and a son with Down syndrome.
In her own words
Barrett’s 2016 lecture at Jacksonville University is interesting because her odds of quickly being nominated to the Supreme Court would have seemed unlikely at the time.
Near the end, during a question-and-answer session, she revealed a personal concern about something she called the “Who-Decides Question” — referring to whether public policy should be decided by the courts or the electorate.
“It is a consequential moment,” Barrett said. “And the Who-Decides Question, just as a personal matter, is really important to me. And so I guess I worry a lot about the Who-Decides Question. About our decisions, and my voice, kind of getting taken away, depending on what happens. And that can be true in either candidate’s selection of nominees.”
Despite her quip about a Trump court, Barrett made a prescient point about his likely Supreme Court nominees, referring to a list Trump had released of people he’d consider.
She said it was “populated with people who would take a more Scalia-esque approach to the Constitution.”
Barrett joins 7th circuit
The Chicago-based 7th Circuit Court of Appeals oversees Illinois, Indiana and Wisconsin. Barrett works most of the time from an office in South Bend.
The path that may lead her to the Supreme Court began on Feb. 20, 2017, when, she has said, she got a call from the office of Sen. Todd Young, R-Ind. He wanted to know whether she’d be interested in leaving academics for the appellate court.
In one of her more notable 7th circuit opinions, she dissented in the case of a felon who challenged whether his conviction should eliminate his right to own a firearm.
Though the majority ruled against the felon, Barrett wrote that the history of the law “does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons” but it does if they are deemed “dangerous.”
When the full court declined in 2018 to hear an appeal revolving around an abortion law in Indiana, she joined Judge Frank Easterbrook in a dissent.
Though the court had not been called upon to consider what he called an “anti-eugenics law” that was part of the overall case, Easterbrook wrote that “none of the court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
Barrett also joined in an opinion earlier this month shooting down a narrow challenge by the Illinois Republican Party to Gov. J.B. Pritzker’s COVID-19 orders.
Barrett’s confirmation process in 2017 generated controversy revolving around her Catholic faith when Sen. Dianne Feinstein, D-Calif., told Barrett that, “dogma lives loudly within you.” The comment drew rebukes from people who saw it as evidence of anti-Catholic bigotry, a theme that has re-emerged with talk of a Barrett nomination.
Barrett is a “mass-going Catholic,” Snead, of Notre Dame, said. If she is nominated, a spotlight may be thrown on her association with People of Praise, which describes itself on its website as a “charismatic Christian community” founded in South Bend in 1971. According to her Senate Judiciary Committee questionnaire, between 2015 and 2017 Barrett served on the board of the Trinity School in South Bend, which says on its website it was founded by the People of Praise.
She has repeatedly said a judge’s personal views should not be imposed on the law — and that good judges often don’t even like the outcomes of their own decisions.
She has also spoken about a judge’s duty in the face of intense public pressure. In a speech last year, she spoke of the late Justice Robert Jackson, who she said “owed his career” to President Franklin Roosevelt, who appointed Jackson to the court.
Barrett told the audience that Jackson had written a dissenting opinion vehemently objecting to the internment of Japanese Americans during World War II. He did so even though the internment was based on an executive order from Roosevelt.
“Being a judge takes courage,” Barrett said. “The courage of Robert Jackson. You are not there to decide cases as you may prefer. You are not there to decide cases as the public or as the press may want you to. You’re not there to win a popularity contest. You are there to do your duty and to follow the law wherever it may take you.”