Analysis

What To Know About High Court Finalist Amy Coney Barrett

Law360 (September 22, 2020, 10:05 PM EDT) -- With the race to fill Justice Ruth Bader Ginsburg's seat gaining momentum, all eyes are turning to Seventh Circuit Judge Amy Coney Barrett as the most likely candidate to emerge as President Donald Trump's nominee Saturday. Here's what to know about the next potential U.S. Supreme Court justice.

The president on Tuesday tweeted his intent to announce his third pick for the Supreme Court some time on Saturday, days after confirming that the nominee to succeed the 87-year-old feminist icon, who died on Friday from cancer complications, would also be a woman.

Judge Barrett is considered a favorite in the race for Justice Ginsburg's seat, and the federal appeals court judge reportedly met with Trump at the White House on Monday.

A prominent conservative legal scholar, the 48-year-old Catholic mother of seven made a name for herself as a professor at University of Notre Dame, the Law School, where she published widely on topics of constitutional law, statutory interpretation and the role of precedent. In her speeches and writings, Judge Barrett expounds on the virtues of originalism and textualism, conservative judicial doctrines championed by the late Justice Antonin Scalia, for whom she clerked.

Well-liked by the conservative legal establishment, Judge Barrett's stock rose dramatically after Democrats seized on her Catholic faith during her Senate confirmation to question whether she could be an impartial judge on the Seventh Circuit. She was ultimately confirmed in October 2017 and has now served on the appeals court for nearly three years.

"It was aggressive questioning of her because of her Catholic faith, and she showed tremendous grace and poise under fire," John Malcolm of the Heritage Foundation told Law360 recently. "I've met her. She's charming. She's just a charming individual in addition to being incredibly intelligent."

Of course, those same conservative bona fides have rung alarm bells for progressives now facing the prospect of losing the 27-year anchor of the Supreme Court's liberal wing to a longtime member of the Federalist Society they expect will be hostile to abortion rights, workers, LGBTQ rights and more.

"She will be an extreme far-right justice on the Supreme Court if she is confirmed," said Elliot Mincberg, who has studied Judge Barrett's record for the progressive group People for the American Way.

Mincberg came to that conclusion "based a little on her pre-judicial statements but also based on her [Seventh Circuit] record, where she is often to the right of other Republican appointees, including very conservative appointees."

Judge Barrett joined an 8-4 decision barring job applicants from bringing claims that certain hiring practices have a discriminatory impact on older workers. The conservative Reagan appointee on the Seventh Circuit, Judge Frank Easterbrook, dissented.

Progressives say Judge Barrett's academic writings reveal a strong bias against reproductive and LGBTQ rights. She said in 2013 that Roe v. Wade "essentially permitted abortion on demand," and in 2018, Judge Barrett dissented when the Seventh Circuit refused to reconsider a decision striking down a controversial statute that made it illegal to perform an abortion because of the fetus' sex, race or disability.

Replacing Justice Ginsburg with Judge Barrett would be a "huge swing to the right," Mincberg said. "Much more so than replacing Scalia with [Justice Neil] Gorsuch, or even [Justice Anthony] Kennedy with [Justice Brett] Kavanaugh."

"It would be hard to find an issue where Barrett agrees with Ginsburg's views," he said. "And vice versa, I suspect."

Depending on how soon she could be confirmed, Judge Barrett could provide the crucial swing vote to rule that the Affordable Care Act is unconstitutional in a pending case set to be heard on Nov. 10. In a 2017 law review article, Judge Barrett criticized Chief Justice John Roberts' 2012 decision upholding the law, saying he "pushed the Affordable Care Act beyond its plausible meaning to save the statute."

"Let's be clear what's at stake: health insurance for millions of Americans and life-saving protections for the 129 million people with pre-existing conditions," Sen. Dianne Feinstein, D-Calif., said in a statement Tuesday.

Born in New Orleans in 1972, Judge Barrett grew up the oldest of seven children whose father was an attorney for the Shell Oil Company. After earning her bachelor's degree in English literature from Rhodes College in 1994, she attended the law school at Notre Dame, where she received her degree in 1997. She worked as a summer associate at Covington & Burling LLP in 1997 before winning a clerkship with D.C. Circuit Judge Laurence H. Silberman and then one with Justice Scalia during the 1998-1999 Supreme Court term.

Judge Barrett worked a stint in private practice following her clerkships and then began a long career in academia that eventually won her a seat on the Seventh Circuit. Since 2002, she has been a professor at  Notre Dame's law school, where she teaches classes on constitutional law, civil procedure, evidence, federal courts and statutory interpretation.

She has published a slew of law review articles over the years expounding on her conservative judicial philosophy. She is also a longtime member of the Federalist Society, the legal network that has had an outsized influence on Trump's judicial selections and counts most of the conservative justices on the court among its ranks.

Judge Barrett explained her commitment to originalism in a 2019 speech to the New Orleans Lawyers Chapter of the Federalist Society. "I think one ought to be an originalist because the Constitution, no less than a statute, is law," she said. "It's not merely a statement of our aspirations as some have described it."

Judge Barrett defended the idea that the Constitution has a "fixed" meaning that does not change with time.

"Its meaning was fixed at the time it was written and formally adopted and it stays the same until it is lawfully changed," she said. "The content of the commitment does not change even if popular attitudes wax and wane. Even if a majority of the country thinks that free speech is passé, the First Amendment stands."

In a Federalist Society webinar in August, Judge Barrett described textualism as "the principle that words in a statute should be interpreted in accordance with their ordinary meaning at the time the statute was enacted."

"For me, textualism matters because it is a theory, one that I think is consistent with the judicial role under the Constitution of what I do quite often, which is interpreting statutes," she said.

--Editing by Emily Kokoll and Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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