Opinion

‘Completing Trump’s Trinity: ACB’s Nomination’

Amy Coney Barrett has been nominated to the Supreme Court of the United States. Who is she, why was she nominated and how is her nomination likely to be received? 

A pious Catholic, the mother of seven children, and herself the eldest child of a family of seven, Barrett was born in 1972 in New Orleans. Barrett began a legal career by moving to Notre Dame law school, graduating first in her 1997 class summa cum laude. Barrett then spent two years clerking, some of that time spent with Antonin Scalia, a Supreme Court justice also ensconced by controversy. She then practiced for a decade, most notably working on Bush v. Gore – the case which finalized the outcome of the 2000 Presidential Election. After this period Barrett then moved into teaching law with a focus on constitutional law.  This is not the first time that Barrett has been nominated by Trump for a role. He ensured her passage onto the 7th Federal Appeal circuit in 2017 (the first and only woman from Indiana to do so, to any dear identitarians reading). This was the first time Democrats locked Barrett into their scopes on a national scale.  Dianne Feinstein found a paper, in which Barrett was a junior contributor in her 3rd year of law school (at least two decades prior). It argued that Catholic judges should recuse themselves from death penalty cases on religious objections. Despite writing in no uncertain terms: ‘my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge’, Feinstein criticized Barrett: ‘the dogma lives loudly in you, and that is a concern’. The author would hold the position that such a line of questioning clearly violates Article VI, Clause 3 of the US Constitution, which Feinstein swore to support as a Senator, pursuant to the very same clause therein no less (speaks volumes to party politics). As expected, Barrett was confirmed in a party-line vote in committee and then 55-43 before the Senate as a whole. 43 senators still voted against her despite all 49 of her Notre Dame colleagues supporting the nomination, as well as every clerk she had worked with without exception.

We can now move to examine Barrett’s judicial philosophy to some degree through her work on the 7th circuit through selections of her 89 currently published opinions. Her most notable case was probably Doe v Purdue University, which concerned Title IX proceedings under the Education Amendments of 1972. The (thankfully) unanimous position of the Court was to uphold the due process of law and bar Purdue from systematically destroying Doe’s life any further (though they had in large part already accomplished that goal) without sufficient evidence, whilst also guaranteeing Doe’s right to due process per the XIV Amendment. It is unfortunate that then, perhaps due to the unanimity of the court (a unanimity so clearly divorced from the dispositions of those who will one day soon come to fill the roles of the authoring judges), that the case was remanded to District Courts for further action, rather than making an international example of Purdue, which the author would argue is and was absolutely necessary.

Contrary to what instagram memes may attempt to persuade you, Barrett has never directly ruled on abortion rights.  Her only actions have been  one vote to rehear a challenge to Indiana’s parental notification law and voting to protect an Indiana law prescribing certain treatments for fetal remains. It is worth noting that the Supreme Court later reinstated that very law and ordered a rehearing in a parental notification case, which would fall under the purview of the aforementioned law. Finally here, Barrett upheld a Chicago ‘bubble ordinance’, protecting people within 50 feet of an abortion clinic being advanced upon without consent, which is pursuant to I Amendment protected protests.  That is Barrett’s complete judicial record on abortion-related issues.

A-level politics students may remember Kanter v Barr, the 2019 case which challenged bans on non-violent felons owning firearms pursuant to the II Amendment. The concerned individual here had been convicted of mail fraud and was denied his II Amendment rights on statutory grounds of: ‘a prevailing government interest in preventing gun violence…’ – but the individual in question had never been convicted of a violent crime. Barrett here again dissented, in what seems to the author the logically consistent position.  Moving to the 4th Amendment, two cases crop up, both resulting in Amendment protections being granted. The first, US v Watson, concerned the reasonableness and probable cause of police seizing firearms without the alleging of a crime. Barrett remanded and vacated the case, finding the individual should not have been charged as the product of an unconstitutional charge. A win for civil liberties and another piece of evidence to show preference to Barrett over Trump’s other nominees on their opinion merits. US v Terry further limited the capacity of third parties to limit police searches of property applying case law from Illinois v Rodriguez. This is a  small sample size on civil liberties, but it is nevertheless a promising one then (bar her actions in last month joining with Diane Wood to protect Governor Pritzker’s COVID-19 orders). 

To the meat of the matter and the substance of the reaction to Barrett’s nomination: Democrats and the broader left-wing coalition screaming from the rooftops that Barrett’s confirmation would spell the death of abortion rights and Roe v Wade. This reflects most clearly in Joe Biden’s flat evasion of the question on whether or not he would pack the Supreme Court by changing the number of justices. It is true that Barrett did not acknowledge Roe v Wade as a ‘super-precedent’ citing Planned Parenthood v Casey as a challenging artefact to show that Roe v Wade had not YET attained that status. Note the capitalised keyword: YET! Nothing in Barrett’s judicial literature or expressed opinions would show an inherent agenda on her part to destroy Roe v Wade. A 2013 Notre Dame magazine article written by Barrett would seem to support this: ‘The fundamental element, that the woman has a right to choose abortion, will probably stand. The controversy now is about funding. It’s a question of whether abortions will be privately or publicly be funded.’ A prediction that was promptly manifested when the Obama administration attempted to order Catholic Nuns to provide abortion care under Obamacare provisions, later blocked by the court. 

To conclude, it is unlucky for Barrett to be nominated right now given the current political climate. She seems a far stranger candidate than both Gorsuch and Kavanaugh when comparing judicial merits. On top of this, the hysteria about her supposed existential threat to abortion rights, now weaponised in an attempt to drive up turnout in Democrat voters, seems entirely out of proportion. With the likelihood being that Barrett will be confirmed before the election on the current timetable and her record of being able to attract marginal Democrat votes in Senate confirmation hearings, clarity on her candidacy is now needed more than ever.