How Amy Coney Barrett might rule

How Amy Coney Barrett might rule

Here’s POLITICO’s look at Barrett’s views on a number of controversial legal issues that the court is expected to address within days of the fall presidential election:


Barrett’s perceived hostility Roe v. calf was the lynchpin of media coverage of her nomination and is expected to be the focus of Barrett’s verification hearing next month. While everyone on Trump’s shortlist is viewed as skeptical of abortion rights, Barrett’s relatively explicit public views on the subject may have given her the advantage of receiving the nomination.

Barrett, a Conservative Catholic and mother of seven, has called abortion “always immoral,” although there are judges who have expressed similar personal views while deciding to uphold abortion rights.

Two years ago, in her position as the 7th Circle Judge, she voted with her colleagues who unsuccessfully asked the appeals court to reconsider a decision that repealed an Indiana law requiring the burial of fetal remains.

The social conservative’s trust that Barrett would be a reliable voice in court to curtail abortion rights stems in large part from their approach rigid decision – the principle that judges should respect the court’s previous precedents, whether they agree with them or consider them legally impeccable.

The approach brings a degree of predictability into American law and prevents it from fluctuating quickly depending on the composition of the court. Barrett has made it clear, however, that the doctrine has gone too far.

“If anything, the public’s response to controversial cases like roe reflects the public opposition to the proposal that rigid decision can declare an enduring winner in a divisive constitutional struggle rather than wanting a precedent to remain unchanged forever, ”wrote Barrett an article on the 2013 legislative review.

Many legal experts doubt that a decision will be overturned roe is probably anytime soon. Indeed, it is far from clear that any of Trump’s previous nominees – Judges Neil Gorsuch and Brett Kavanaugh – would advocate such a move.

During a 2013 forum, Barrett appeared to agree that roe will endure in some form, as she stated that the “fundamental element of the landmark decision that women have the right to choose abortion” is likely to persist. “The current controversy is about funding,” she added. “It’s a question of whether abortions are publicly or privately funded.”

In the same forum, Barrett made a pragmatic remark: Policy makers should focus on helping poor women to reduce abortion rates.

Even if the court is unwilling to reject Roe, Barrett would likely hasten the gradual withdrawal of judges on abortion rights by voting so the federal government can cut funding for groups like Planned Parenthood and allow a number of additional state regulations on abortion . These rules can drastically reduce the availability of abortions by reducing the number of clinics and providers, and by imposing other requirements that discourage women from seeking abortions by increasing the cost and practical difficulty of obtaining the procedure.

Pandemic response

With coronavirus infections rebounding in much of the country and fears of a new winter wave of the pandemic in the United States high, states are likely to reassert at least some of the general restrictions they put on citizens, businesses and religious groups earlier this year introduce . This, in turn, could trigger a new round of legal challenges reaching the Supreme Court.

“I think we’re in a whole new field,” said Lawrence Gostin, professor of global health law at Georgetown University. “Covid-19 has proven so politically charged that we are seeing a spate of litigation,” he added.

Recent court records on such cases suggest Barrett could play a crucial role in the outcome, although it is not clear where it would go.

Many of the pandemic-related lawsuits seek emergency relief, which means they come before the judges within months, as opposed to the usual year-long deadline.

Although the court often dismisses these urgency motions with no comment or noted objection, the judges split 5-4 earlier this year as it dismissed challenges to the churches in California and Nevada and complained that they were wrongly attacked by lockdown orders.

In both cases, Roberts sided with the court’s liberals to give civil servants a wide leeway, while the rest of the court’s conservatives disagreed with each other about what they considered the second-rate treatment of religion and religion. After Ginsburg was gone, the court could be split 4: 4 in such cases, which made Barrett the decisive vote.

“If a judiciary were more inclined to read religious freedom more fully, it might have been different,” said Wendy Parmet, professor of health law at Northeastern University.

While Barrett’s records and personal beliefs make it clear that she agrees with the religion, it is not clear how she would respond to lawsuits involving staying home. She hasn’t ruled on a case filed by churches or other religious groups, but she cast a low-profile vote in July to reject a decision rejecting a challenge that pushed Illinois Republicans to the limits of the Virus brought by Democratic Governor JB Pritzker at personal political meetings

It seems like the GOP would have missed out on this, regardless of how Barrett saw the problem, but their move to oppose a Republican Party-backed suit related to the virus is worth noting.


If Barrett makes it to the Supreme Court before the election, she may barely have time to catch her breath before hearing arguments on what is considered the largest case on record for this term: one by the Trump- Government sponsored challenge that aims to put them down the Affordable Care Act.

Barrett has not shy away from giving her opinion on the law. Criticizing Roberts’ 2012 compromise, which preserved an important part of Obamacare, she stated that the Chief Justice’s position “moves the language of the law beyond its plausible meaning in order to save the Statute”.

In the same 2017 article, she quotes approvingly the late Judge Antonin Scalia, for whom she worked as an employee, referring to his suggestion, Obamacare, in SCOTUScare, in honor of the court’s willingness to rewrite the statute to maintain it rename afloat. “

Barrett also signed a protest against Obamacare’s birth control mandate on the grounds that it violated religious freedoms. This summer, the judges shed green light on a Trump administrative ordinance granting employers extensive exemption for not meeting legal requirements for free contraception for their workers. However, the bank has not resolved all of the legal issues raised by the polarization case, and politics will almost certainly come back to the Supreme Court again.

Another Obamacare-related case where their ideas about religious freedom will come into play is the litigation over entrenched guarantees that transgender people are entitled to surgery and sex reassignment hormones, and women are entitled to abortions – as is coverage Health plans and the provision of such care by doctors and hospitals. Justice Samuel Alito has already strongly referred to the issue as a conflict with religious freedoms.

An election campaign

If the November election turns out to be a squeaker, the Supreme Court could be asked to determine the outcome, just as it did in the 2000 competition between George W. Bush and Al Gore. How she and other judges would react to being drawn into the political struggle is uncertain, and judges often retreat when pigeonholed because of their political beliefs or those of the president who appointed them.

However, past performance is a prediction of future results. And when that nightmare scenario played out two decades ago, every GOP-appointed judiciary was on the side of the verdict that effectively declared Bush the winner, while every Democratic agent supported Gore’s stance so that ballot counting could continue.

Of course, many other election-related issues come to the court regularly, including redistribution and voter identification laws. Barrett is a Conservative who would join an already trustworthy Conservative court on these matters, and is unlikely to get to the bank in time to rule on a spate of emergency requests that will come in the coming weeks related to changes being made various states have taken part in the voting process are expected to respond to Covid-19.

Climate change

Barrett’s skeptical view of it rigid decision could have an impact beyond the right to abortion, especially in the area of ​​the federal government’s power to use the law in force to combat climate change.

Conservatives have been trying for years to have a court review the boundaries of federal agency, preferably to rule that the environmental protection agency can only take small regulatory steps under applicable laws rather than demanding the steep curbs that scientists believe necessary to stave off the worst effects of climate change, including extreme weather and rapid sea level rise.

One potential target in a Supreme Court that is not bound by its own precedent is the 2007 judgment in Massachusetts v EPA The Clean Air Act gave the agency the power to regulate greenhouse gases. Only one of the majority judges in this 5-4 case, Stephen Breyer, remains in court today while three of the four dissenters still hold their seats.

At least two current judges have expressed an interest in reviewing the climate regime. In 2011, a unanimous Ginsburg-led court reiterated the results of the Massachusetts ruling – but in one brief approvalJudges Samuel Alito and Clarence Thomas said they only voted that way because in the second case nobody questioned the base value Massachusetts Decision, indicating your interest in visiting again.

They doubled their opposition in another side note to a 2014 judgment that again largely confirmed EPA Greenhouse Gas Regulators. The Clean Air Act “was designed to regulate the emission of conventional pollutants and is simply not suitable for use in relation to greenhouse gases,” they write.

Other members of the conservative wing of the court could prove to be allies in rethinking the climate decision as well.

Roberts contradicted the original Massachusetts Decision. And when he was a judge on the DC Circuit, Kavanaugh, reflecting on legal challenges for the Obama administration’s 2016 Clean Power Plan argued This congress should be the branch to pursue a comprehensive climate policy, even if the legislature did not recognize this in 2010 under strong democratic control.

With a more conservative judge like Barrett in Ginsburg’s seat, the court could opt for a weakening Massachusetts without overthrowing it, said Jody Freeman, director of the environmental and energy law program at Harvard Law School and a former White House adviser to Obama.

“The court could more easily narrow the potential of this milestone by narrowing down the jurisdiction of the EPA or the standards body,” Freeman wrote in an email. This could include “interpreting provisions to require additional cost-benefit analysis, taking a limited approach to the“ co-benefits ”associated with climate rules, and otherwise making it difficult for the agency to regulate greenhouse gases and other pollution. “

Reining in the administrative state

Barrett’s penchant for originalism could also spark the Supreme Court’s interest in reconsidering, restricting, or even abolishing a controversial legal doctrine that critics claim unconstitutionally empowers regulators and federal bureaucrats – a concept known as chevron deference.

Chevron homage is unlikely to lead to street protests anytime soon, but the demolition of the concept has become one Cri de Coeur for legal conservatives in recent years. Named after the 1984 court ruling on a case named Chevron v Natural Resources Defense CouncilAccording to the doctrine, when a law is ambiguous about an agency’s powers, judges should defer the agency’s reasonable interpretation of the law.

Opponents of the doctrine argue that it has ceded the power to interpret laws from the judiciary to the executive, including major environmental regulations. Justices Clarence Thomas and Neil Gorsuch both criticized the doctrine, as did Anthony Kennedy before he retired in 2018. Kavanaugh is also open to restricting them as well.

If Joe Biden wins the presidency, the issue could become a legal hot spot as federal agencies are likely to seek to expand their regulatory powers.

During her time at the bank, Barrett only considered a few environmental cases. None presented the kind of broad ideological questions that give much insight into possible decisions of the Supreme Court in this area.

For example, in 2018 Barrett joined a body that found that the Army Corps of Engineers did not provide enough evidence to support its decision that 13 acres of wetlands in Illinois fell under federal jurisdiction and was blocked from development. The judges sent the matter back to the Corps to consider. Also this year, Barrett wrote A body that found a company to burn old railroad ties to generate electricity would be charged a fee of $ 100,000 if the links fail to offload from a railroad shipment quickly enough.

Sexual violence / due process on campus

Barrett has taken a fairly clear position on a contentious issue that has sparked a growing wave of litigation in the lower courts: whether the universities owe accused students adequate legal protection in disciplinary proceedings related to allegations of rape or sexual assault.

in the a decision last yearBarrett ruled that an accused male Purdue University student was allowed to proceed with his lawsuit alleging that the school illegally discriminated against him based on his sex by undergoing a trial that effectively assumed his guilt. The judge found that the university did not allow the male student to produce witnesses, including a roommate of his who denied the alleged victim’s account, and that two of the three school board members who decided on the punishment in the case, confirmed that they had not read an investigation report about the episode.

Barrett said the nameless male student made a plausible claim of federal sex discrimination that requires gender equality in education, Title IX. She also said he could have a viable constitutional claim that the state school denied him due process through procedures that violated his right to a defense.

The decision was endorsed by lawyers for accused students, who are usually men, and viewed with suspicion by some women’s rights lawyers, who fear that it will cause universities to revert to previous practices involving complaints from women of sexual assault and sexual harassment was often only briefly examined on campus.

Criminal Justice / Qualified Immunity

Criminal justice and police abuse cases divide the Conservatives and sometimes lead to alliances with liberals to curtail the use of government power, curb criminal law, or allow recourse to alleged police violence victims.

Barrett’s record in this area is murky, but an opinion she penned last year gives some civic libertarians that she would be a voice to roll back the legal doctrine of qualified immunity that is often used to cover cases against police officers and other government officials dismiss civil lawsuits for alleged abuse.

According to the theory, a lawsuit over an incident in which a person’s rights have been violated can still be dismissed if the acts are not “clearly determined to be a violation of the constitution” at the time of the incident. Since no two episodes are the same, doctrine sometimes allows the police and others to evade legal liability, as a fine distinction is made between the incident and previous episodes that have been declared unconstitutional by the courts.

The opinion Barrett made last year Denied a qualified immunity claim from an Indianapolis police officer accused of fabricating claims and presenting a distorted picture of a murder suspect in a warrant filing. “The illegality of intentionally using fake allegations to establish a likely cause couldn’t be clearer,” she wrote, allowing the lawsuit to proceed.

If Barrett proves to be more open to ruling on criminal defendants or those accusing the police of abusive tactics, it could result in a significant rescheduling of the Supreme Court, as some of the court’s conservatives – Alito and Thomas – are almost always on the police side or the government stand in such cases, the attitude of Justice Neil Gorsuch is less predictable. In addition, liberal judges like Stephen Breyer and Elena Kagan are relatively moderate in this area, which makes it difficult for those to set limits on the police.

If Barrett appears to be conservative on such arguments in court, she follows in the footsteps of her court mentor, Justice Antonin Scalia, who on occasion joined the court’s liberals in such decisions.

Susannah Luthi, Alex Guillen, and Renuka Rayasam contributed to this report.


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