U.S. Circuit Judge Amy Coney Barrett — “The Notorious ACB” to her growing legion of fans — has emerged fresh out of her formal nomination to the U.S. Supreme Court Saturday and is now heading into a monumental confirmation fight sometime in mid-October — most likely Oct. 12.
What we can know for certain is Barrett’s record of opinions that she authored while on the bench. Constitutional law professor Alan Dershowitz and Elizabeth Slattery, senior legal fellow and Deputy Director of Pacific Legal Foundation’s Center for the Separation of Powers, recently analyzed Barrett's record for Newsmax.
“I don’t [think] Barrett is a regional nominee — I think that she is an ideological nominee,” Dershowitz told us. “She’s the nominee who the president believes will bring out his base among evangelicals and pro-life voters. Her nomination is not to win a state. It’s to bring out a slew of voters across the country who are pro-life.”
The conservative senators will most likely have an issue with the controversial decision Price v. Chicago (2019), where the 7th U.S. Circuit Court of Appeals relied on the Supreme Court’s decision in Hill v. Colorado (2000). In Hill, the Supreme Court upheld 6-3 a Colorado statute making it unlawful to “knowing approach” within 8 feet of another person without their consent to pass “a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person.”
Barrett, according to Dershowitz, “got the better of that argument with Senator [Dianne] Feinstein. Senator Feinstein should go back and read the Constitution which says no religious test and ours was the first constitution in the world to not have a religious test. No one has the right to vote against someone on the basis of their religion, but they do have that right on the basis of their judicial philosophy.”
What is particularly notable is that, at the time of Hill, Barrett had just finished her clerkship with the late Supreme Court Justice Antonin Scalia. The court heard oral argument on Jan. 19, 2000, and Barrett’s clerkship with Scalia ended in 1999.
Scalia’s dissent went so far as to end his opinion with this jewel: “Today’s distortions, however, are particularly blatant. Restrictive views of the First Amendment that have been in dissent since the 1930’s suddenly find themselves in the majority.”
Uninhibited, robust, and wide open “debate is replaced by the power of the State to protect an unheard-of & ‘right to be let alone’ on the public streets,” wrote Scalia in his dissenting opinion on Hill v. Colorado, 530 U.S. 765 (2000).
Pacific Legal's Slattery showed how Barrett’s judicial schema operates with statutes and texts. In Slattery’s words, “[s]he is a textualist and an originalist. If you go back to her academic writings, you can see that before she ever became a judge. She approaches things very thoughtfully and she reads the statutes in the context of what the words meant at the time that they were passed.”
The main aspect of Barrett’s judicial philosophy is rejecting the opportunity to apply her personal beliefs in a case that is brought to the bench.
As Slattery put it, “she has made it pretty clear that a judge should not impose his/her personal convictions or faith on the law. I would point out as a judge that she wrote a piece on how Catholic judges should approach the issue of capital punishment cases. She made it abundantly clear that she would not put her faith on people as a judge and she has voted against granting a stay/application in capital punishment cases which allowed the executions to move forward.”
Barrett’s case review on the Second Amendment is also very noteworthy, as is her judicial philosophy when applied to interpreting other rights within the Constitution. Slattery brought up Barrett’s opinion in Kanter v. Barr, noting “her dissenting opinion in Kanter was where a felon was barred from being able to possess a firearm. However, she notes that the history of the Second Amendment bars only ‘dangerous’ felons from owning firearms. Felons don’t lose that Second Amendment right solely because of their status and the state failed to show that prohibiting a nonviolent felon that such a prohibition would advance public safety.”
“I think that shows that she is willing to be skeptical and push back on states when they infringe individual rights,” Slattery told us.
While textualists and conservatives in general will discover Barrett's record is not perfect, no judge’s record ever has been, and what they see they will almost surely be satisfied with.
(Michael Cozzi is a Ph.D. candidate at the Catholic University of America in Washington, D.C.)
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