Jurisprudence

What Do We Really Know About Amy Coney Barrett?

Amy Coney Barrett in profile with an American flag behind her.
Judge Amy Coney Barrett after being nominated to the Supreme Court at the White House on Saturday. Olivier Douliery/AFP/Getty Images

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Slate’s Mark Joseph Stern has been hearing the name Amy Coney Barrett for a long time now—ever since this story came out that President Donald Trump was “saving” Barrett to, someday, replace Justice Ruth Bader Ginsburg. For all that talk, Barrett has only been on the bench for three years. What do we really know about her? And how would she rule on the Supreme Court? On Monday’s show, Stern explained why Barrett’s appointment concerns him so much by looking at who she is as a person but also as a scholar and a jurist. Our conversation has been edited and condensed for clarity.

Mary Harris: I think the president and Amy Coney Barrett herself have done a really good job of introducing who this potential justice is. Theyve introduced her as a mom and a religious woman with seven kids—a real soft-focus, gauzy-lighting kind of introduction. But Im hoping you can introduce Amy Coney Barrett as a jurist. Shes a pretty new federal judge, so we dont have a ton of opinions to lean on here. What we do know is that she clerked for Justice Antonin Scalia. He was her mentor. And she went on to teach at Notre Dame. She was a very beloved professor there. But also while she was at Notre Dame, she made her conservative bent very clearShe was on a faculty group that said it was pro-life. She also took a stance on the Affordable Care Act. So I think shes been out there with her opinions.

Mark Joseph Stern: I think that what she was doing was following the Federalist Society playbook: You clerk for a federal judge, ideally a Supreme Court justice. Check. You go into corporate law. Check. You go into academia and you build up a student following who will testify at your eventual confirmation hearings about how you’re such a lovely person and you bring ice cream to class or whatever. Check. And then you start to make yourself prominent by going out on cable news and going on the lecture circuit and talking about really controversial issues in a kind of couched euphemistic way so that the people in the know realize you’re one of them and realize that you will rule for them. But people who don’t pay super close attention to this stuff will just assume you’re being a professor speaking in sort of academic legalese. Check. So that’s where she was when Trump placed her on the 7th Circuit. And that hearing is what pushed her to the very top of the list.

That hearing was really interesting because she has this back-and-forth with Dianne Feinstein. I understand what Feinstein was saying. She was saying that Barrett has a very strong Catholic faith and that she worried Barrett may be ruling through the Catholic faith lens. But, Mark, you say that whole line of questioning is a trap. Can you explain a little bit what happened and why you think that?

There is no way for Democrats to win on this talking point, because let’s assume that Dianne Feinstein had a real point here. OK, let’s just assume that she had a valid concern that Amy Coney Barrett would draw upon her Catholic faith rather than the actual law in her rulings. There is simply no way to talk about that without Republicans jumping on what Democrats say and accusing them of anti-Catholic bias and accusing them of being bigoted against Catholics.

And you can already see it. You can see in the past week, pundits coming out and talking about how the “liberal media” is attacking Barretts faith.

They were so eager for literally anyone to say anything bad about Barrett’s faith. This whole last week, you saw Republicans salivating like a dog at the dinner table, waiting for a chicken bone. Please, someone, anyone say something about Amy Coney Barrett’s faith so that we can trot out these prewritten press releases and tweets about how deeply offensive it is that people are attacking her for her Catholic faith. And that this profound bigotry on the left is just further proof that we must confirm her. What did we actually see over the last week about her faith? Like, one bad Newsweek article and some randos tweeting stupid stuff—half of whom are probably bots. There is not a mass resistance to Amy Coney Barrett on the left due to her faith. There is a mass resistance because she has pretty clearly telegraphed what she is going to do on the court. And to my mind, her motivations are irrelevant. I don’t really care why she believes what she believes. She shares those beliefs with many other people who are not in a devout evangelical Christian charismatic worship group. This is the dogma of the Federalist Society, and it really accepts all comers. As long as you’re willing to buy into this superconservative anti-Roe, anti-LGBTQ, anti-labor jurisprudence, you can come from any background you want and you will be welcomed with open arms.

Can we talk a little bit about the record she has? Where she stands on the ACA, for instance, because the court is set to take up the ACA this term.

Let’s go over her relatively thin record and pluck out some examples. We know that she believes that John Roberts’ famous 2012 opinion upholding the ACA and the individual mandate—she trashed that opinion and she said that Roberts stretched the text beyond any plausible interpretation in order to save the law. So she’s not only saying that the ACA is unconstitutional but is actually imputing bad faith to the chief justice for upholding it. And there is a case at the court that will be heard one week after Election Day that seeks to eradicate the entire Affordable Care Act. It’s not very difficult to guess where she’s going to fall on that.

And I think this is a great example of why the Republican strategy on judges is so smart. They cannot get 50 votes to repeal the Affordable Care Act. They cannot get 50 votes to abolish Medicaid expansion or protections for preexisting conditions or whatever. But they can get 50 votes for judges who will do exactly that. And it is much easier to go out there and defend a mother of seven, a beloved faculty member and student adviser than it is to go out there and defend stripping health insurance from 20 million people. And so this is the game that they have played so successfully. And in some ways, Barrett is the endgame, at least for the ACA.

And overturning Roe v. Wade is another part of that endgame, right? It just requires getting the optics right.

First and foremost, the plan has always been to have a woman overturn Roe v. Wade.

OK, you sound so conspiratorial. “This is the plan.”

I mean, if you go back and look at what Reagan said about Sandra Day O’Connor when he nominated her, he was like, I know I feel personally confident that she opposes abortion and finds it abhorrent and will vote to not respect abortion rights. And she was the first woman on the court. This was not a coincidence. This was actually kind of done in plain daylight. We will put a conservative woman on the court who will roll back and overturn Roe v. Wade. That was the plan. And that didn’t work out because O’Connor ended up flipping. So then Samuel Alito takes O’Connor’s place. In 2007, the court issued this terrible decision that bans the safest form of a second-trimester abortion. And it’s five men in the majority. That gets a lot of blowback even from independents and centrist types who are looking at these five dudes and saying they are making decisions for 150 million women. And those justices and the network of conservative attorneys and politicians behind them understand the optics problem there. They really get that they are vulnerable to accusations of misogyny and sexism when it’s dudes rolling back women’s reproductive rights. And so they have long said behind closed doors and sometimes in broad daylight, We do not want a sausage party overturning Roe. We want a woman to be the face of Roes reversal to shield us from the accusations of misogyny that are certain to follow. And that’s who Amy Coney Barrett is. She was born for this role. This is what she will do. I have very little doubt.

Why are these groups, and why are you, so convinced of that?

One example here is that she voted to reinstate an Indiana law that would require minors seeking an abortion to notify their parents before the procedure, even if a judge heard her case and ruled that she was mature enough to make the decision on her own without parental interference.

What was her reasoning for doing that? 

Here’s the thing: She’s only been on the bench for three years. Not a super long time. She has not written anything herself about abortion in that period. She’s only joined other opinions. So it’s a little bit difficult to glean exactly what she was thinking. But her reasoning in general was that we don’t know exactly how harmful this law is going to be to girls and we don’t know exactly how many girls it’ll impact. So we need to let the law take effect and then assess the consequences rather than block it on the theory that young women need their constitutional rights protected.

Basically, almost any time someone who is powerless or weak or a minority or is relying on the federal judiciary to protect their rights goes before Amy Coney Barrett, she rules against them. It’s a very, very, very clear pattern here. Prisoners who were subject to disproportionate violence don’t get rights when Amy Coney Barrett is on their case. An immigrant who is about to be deported and is going to face torture at home, Amy Coney Barrett says deport them. Send them away. An older person who is applying for a job and likely turned away because of age discrimination, Amy Coney Barrett says tough shit. You don’t have any rights here. You can just suffer.

Youve called it a fundamentally cruel interpretation of the law.

It seems as if anytime there are two plausible readings of a text and one of them expands rights and one of them contracts them, she always goes for the reading that will contract rights, that will turn away vulnerable people, that will inflict real world harm on the people before her court. And that is just so, so radically different from how Justice Ginsburg approached the law. Justice Ginsburg pretty much always took the more expansive reading, the reading that better protected liberty and equality and constitutional values that she held dear.

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