Who is Judge Amy Coney Barrett and what’s next for her confirmation battle? Amy Howe answers these questions and more on this week’s episode of SCOTUStalk. Amy sits down with SCOTUSblog media editor Katie Barlow to discuss the significance of President Donald Trump’s third nomination to the court, what the truncated confirmation timeline will be like, and what hot-button issues she would face as the court’s newest justice.
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The full transcript is below.
[00:00:00] Oyez! Oyez! Oyez!
Amy Howe: [00:00:03] This is SCOTUStalk, a nonpartisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.
AH: [00:00:13] On Saturday, President Donald Trump announced that he was nominating Judge Amy Coney Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg. What does Barrett’s nomination mean for the Supreme Court, which is scheduled to begin its new term on Monday, October 5th? Joining me to suss this out is Katie Barlow, SCOTUSblog’s media editor. Katie, thanks for joining me. Let’s go ahead and dive in.
Katie Barlow: [00:00:37] Now that we know who President Trump’s nominee is, then we can start to dig into her background and some of the opinions that she’s written. It’s easy to get into the weeds, but let’s zoom out to ten thousand feet for a second and just talk about what is the significance of this nomination and what could it mean?
AH: [00:00:58] So if Amy Coney Barrett turns out to be a justice in the mold of Justice Antonin Scalia, for whom she clerked and whose jurisprudence she says she emulates, it really could be a seismic shift on the court. Many of the Supreme Court’s recent decisions on the sort of hot button social issues of the day have been five, four decisions. And many of the decisions in which the justices have reached what many would consider to be a liberal result have been because the either the chief justice or before him, Justice Anthony Kennedy, joined the court’s four more liberal justices. And now that group of four more liberal justices is down would be down to three, because Justice Ruth Bader Ginsburg, who passed away last week, was one of the most reliably liberal justices on the court. And so, you’d have three liberal justices and a really solid majority of six conservative justices.
[00:02:01] And so it wouldn’t really so much matter anymore if one of the conservative justices peeled off to vote for with the liberal justices because there would still be a very solid majority of five conservative justices. And so this could affect all kinds of issues like abortion, affirmative action, gun rights, you name it.
KB: [00:02:21] All right. So, having taken that wider lens view, now let’s zoom back in. And who is Amy Coney Barrett? What do we know about her? Who is she?
[00:02:32] So we know quite a lot. She is a forty-eight-year-old judge on the US Court of Appeals for the 7th Circuit, which is based in Chicago. She grew up in Louisiana, went to law school at Notre Dame, where she was a top student before coming to Washington, first a clerk on the D.C. Circuit and then to clerk on the Supreme Court for Justice Scalia. She stayed in Washington for a couple of years to practice law, starting at a law firm called Miller Cassidy, which was a boutique law firm and really was one of the hardest jobs to get in Washington as a young law student at the time. So ,she stayed there for a couple of years and then she went back to Notre Dame to teach as a law professor there for 15 years before becoming a federal judge in 2017. While she was at Notre Dame, she won teaching awards. She had very broad support from the faculty and her students when she was nominated by President Trump to serve on the Court of Appeals in 2017.
KB: [00:03:30] We heard at the nomination ceremony yesterday how excited the conservatives were.
[00:03:35] I mean, there was an uproar of applause. Why are they so excited about her nomination?
AH: [00:03:41] So she has said that she is in terms of her judicial philosophy and originalist and textualist. And so an originalist is someone who interprets the Constitution according to what the words meant to the people who drafted them when it was drafted back in the 1780s. And a textualist. When you’re interpreting the law, you look at the words on the page. You don’t go looking at what Congress might have intended to do when it passed the law. And really, almost anyone whom the president nominated probably would have said that. But, Amy Coney Barrett really became a heroine to social conservatives at her 2017 confirmation hearing. There were a lot of questions about the extent to which her Catholic faith might influence her judging. And there was a famous moment in which Senator Dianne Feinstein of California said to her, “The dogma lives loudly within you.” And it really sort of went viral, I think, among social conservatives. There were mugs and T-shirts printed with that. It probably had the opposite effect from what Feinstein had intended. And so I think that the social conservatives, conservatives believe that she’s going to be like her old boss, Justice Scalia, on important social issues. She signed a statement of protest while she was at Notre Dame criticizing the accommodations that the Obama administration had created for religious employers, for example, who would have otherwise needed to comply with the Affordable Care Act’s birth control mandate. Religious employers had argued that even the workaround that the Obama administration had created still violated their religious rights by making them complicit in providing birth control to their female employees. And the president had promised while he was running for president back in twenty sixteen that he was going to appoint judges who would vote to overturn Roe versus Wade. And they probably believe she’s likely to vote to do that in her votes in a couple of cases on the bench while she’s been on the 7th Circuit, or at least suggest they were.
[00:05:46] There’s a little bit of nuance in the sense that these were votes on whether or not the full 7th Circuit should rehear cases in which a three-judge panel had struck down Indiana laws regulating abortion. But those votes suggest that she supported those laws in Indiana regulating abortion.
KB: [00:06:06] So you mentioned her abortion related decisions, not written opinions, but her votes in cases to rehear en banc. And it’s interesting because she spent three years on the 7th Circuit before her nomination, whereas her fellow Trump appointee colleagues, if she gets confirmed, Justices Gorsuch and Kavanaugh spent nearly 10 years each in their respective federal judgeships on the 10th Circuit and the D.C. Circuit.
[00:06:34] And in fact, hot button issues like abortion didn’t come up for Justice Gorsuch, who was able to avoid those types of decisions in his nearly decade on the 10th Circuit. And she’s going to have more than just abortion come up. She’s written opinions already on things like gun rights and immigration and sexual assault on college campuses. So, what do you think is going to come up based on the opinions that you’ve looked at already? You’ve written about them. SCOTUSblog has started to delve into them. In fact, we have all nearly one hundred of her opinions on our website if anybody wants to look at them. But what do you think is going to be top priority out of her opinions in the Judiciary Committee hearing?
AH: [00:07:16] So, yes, I think it’s a great point about Justices Gorsuch and Kavanaugh. We were left to sort of pass his book about euthanasia, which arose out of his Ph.D. dissertation to try and figure out what that might mean for his views on abortion, because I don’t think it had come up at all while he was on the bench.
[00:07:39] I think certainly the Affordable Care Act is something that is going to be top of mind for Democrats at the confirmation hearing. She was quite critical of the chief justice’s vote, his decision to uphold the individual mandate.
[00:07:54] She really was very skeptical about it. And the Affordable Care Act and the individual mandate are going to be back at the Supreme Court on November 10th. And I think we may talk a little bit more about the timeline, but it’s certainly something that she could very well be on the bench to hear oral argument in. And so that is something I think that they’re likely to address. I think abortion is certainly going to be something that they’re going to address. Gun rights in 2019, she dissented from a ruling in which the majority on a three-judge panel rejected the argument that a federal law, state law that barred people who’ve been convicted of felonies from having guns violates the Second Amendment right to bear arms. She dissented. She said, you really have to look at this on a case-by-case basis. This guy had been convicted of mail fraud and at the time of the country’s founding, legislatures looked at whether or not someone was likely to be dangerous before they took away his gun rights. And the implication was this guy is not dangerous. And she said the Second Amendment confers an individual right. I think everyone believes that if she were confirmed, which seems at this point likely that she’s likely to take a broader reading of the Second Amendment. I think, as you mentioned, there’s a case in which she wrote for a three-judge panel that reinstated a lawsuit brought against Purdue University by a student who had been found guilty of sexual assault through the university’s student discipline program.
[00:09:27] One expert on university compliance with the federal laws barring gender discrimination in education said that this opinion was a trendsetter. He called it that would make it easier for students to bring these kinds of lawsuits against universities to trial.
KB: [00:09:43] All of those things are obviously reflective of what is concerning liberals at the moment. Democrats circulated a memo already outlining 19 potential delay tactics for this nomination. But is it more than just those opinions? What is so concerning to the left right now?
AH: [00:10:03] I think there is I think there’s a couple of things going on, I mean, I think there there is this sense that she will be like her old boss, Justice Scalia, and could well be once she’s on the bench, kind of a thought leader, in the same way that Justice Scalia was. I mean, I think there’s also the element, the liberals, both because of what’s at stake generally and then because of the process, the idea that back in 2016 Republicans refused to fill the vacancy when President Obama was nearing the end of his second term, but are now filling a vacancy when President Trump’s is up for reelection and election is looming so large, that this is just wrong. I think they certainly would have opposed whoever the president would have nominated. It’s almost unimaginable that he would nominate someone who would be acceptable both to his base and to Democrats. I think Barack Obama tried that. It didn’t go so well. And now she does have, unlike some of the other judges who were reportedly in the mix as potential nominees, this long paper trail on issues that they can point to.
KB: [00:11:23] So we kind of got our first national public glimpse of her beyond her, her judiciary hearing for the 7th Circuit, which was interesting, but I’m not sure the entire nation was watching in the same way as they were watching the ceremony in the Rose Garden when President Trump nominated her, and she spoke after he gave his speech, officially nominating her. Talk a little bit about what she said when she spoke in the Rose Garden. What did she say to us and to the country?
AH: [00:11:51] It was only eight minutes. We’ll see a lot more of her. At the confirmation hearing. She said some of the things you’d expect. You know, that she was deeply honored. She was truly humbled. She paid tribute to Justice Ruth Bader Ginsburg. She observed that this was all happening very quickly, that the flags were still flying at half-staff. She talked about her family. She’s the mother of seven children and her husband. And she really tried to address some of the divisions in the country, particularly when it came to her nomination. She talked about Justice Ginsburg as a pioneer, but she also talked about Justice Ginsburg’s friendship with Justice Scalia. And she said they disagreed fiercely in print, but they always got along in person. And, you know, maybe she seemed to me to be alluding to the controversy over her Catholic faith and what role that might play in her judging. And she said the Supreme Court belongs to all of us and she pledged to be impartial.
KB: [00:12:47] It’s been a bit of a long road to get to her nomination. She had been circulating in conversations about potential nominees. She was in the conversation for when Justice Kavanaugh was nominated.
[00:13:03] Can you talk a little bit about the road to this nomination, the short list, the multiple short lists, including one we got not so very long ago, and other finalists that were considered.
AH: [00:13:15] So the president back in twenty sixteen when he was running for president, released a list of potential nominees. And he said, if I’m elected and there’s a vacancy, I will draw from this list. The list was a big success, really, I think sort of upped his credibility with conservatives and particularly with religious conservatives who been somewhat skeptical about him, whether he was really one of them, so to speak. Remember, there are videos circulating like a clip of him on Meet the Press with the late Tim Russert saying, you know, “I’m very pro-choice.” And so I think this helped to reassure them before the election that if he were elected, he would pick a conservative, because at that point there was the opening created by the death of Justice Scalia. And then he added to the list. Again Justice Kavanaugh was added to the list later on so that he was on the list of potential nominees by the time Justice Anthony Kennedy retired in 2018. And then just recently, President Trump released a new list of potential nominees that was added to the old list. And among the people on that list was a judge in Florida named Barbara Lagoa, who’s on the US Court of Appeals for the 11th Circuit and a judge on the US Court of Appeals for the 4th Circuit, Alison Jones Rushing, who’s quite young, she’s only 38 years old and has been on the bench for about a year and a half. And Justice Ginsburg passed away on Friday, and the president made his announcement the following Saturday. But after Justice Kennedy’s retirement, as you as you mentioned, Judge Barrett was by all accounts, on the short list for that vacancy. And there was reporting by Axios after the vacancy was filled by now Justice Brett Kavanaugh, that Trump had told his advisers that he was saving a Amy Coney Barrett in case Justice Ginsburg were to leave the court during his presidency.
[00:15:18] And so it all moved very quickly after Justice Ginsburg passed away, eight days before the nomination was made. But you had the sense, I don’t know that anyone knew inside the White House or even outside her close circle of friends sort of how she was doing. But there had been reports about her health problems. And I imagine that inside the White House, they were prepared to be ready, at least for a vacancy on the Supreme Court. There hasn’t been any reporting yet, but it’s not clear whether or not anyone else was ever seriously in the mix besides Amy Coney Barrett. Judge Lagoa, there was there was a lot of political upside to nominating her. She was the first Hispanic woman and the first Cuban-American woman on the Florida Supreme Court. Obviously, there’s an upcoming election. Florida’s got a lot of electoral votes and she’s very well regarded in conservative circles but doesn’t necessarily have the conservative track record that Amy Coney Barrett has yet. Jeremy Diamond of CNN reported that at a fundraiser in Florida just in the last couple of days, that the president told Florida leaders that if he’s re-elected, and there’s another vacancy, that judge Lagoa would definitely be in the mix. Alison Jones Rushing, as I mentioned, is only 38. She’s only been on the court of appeals for about a year and a half. And so, although I don’t think anyone would question her academic credentials to be on the court, she may just not be quite seasoned enough as a judge to be on the Supreme Court yet.
KB: [00:17:00] So now that she has been thrown into the fire, so to speak, both she and the Senate Judiciary Committee have to work quickly.
[00:17:10] We’re expecting hearings to begin the week of October 12th, which is in two weeks. And typically, that process takes about six weeks from nomination to hearing.
[00:17:19] So talk a little bit about what happens next, how quickly that’s going to happen, what the timeline is going to look like. Clearly, multiple things are going to be happening at once.
AH: [00:17:27] Sure. I mean, you know, there’s no requirement, obviously, that they work quickly. Obviously, it sounds like the president wants to get her on the Supreme Court before the election for a variety of reasons. And having done that, then they would have to work quickly because there were 38 days from Saturday when the president made the nomination until Election Day. So the hearings are scheduled for October 12th. Senator Lindsey Graham has said that they would like to have Judge Barrett’s nomination clear the committee, the Senate Judiciary Committee, by October 26th to set up a vote before the election. So it is certainly much faster than most Supreme Court nominations move. I’ve seen reporting that some Democratic senators have said that they don’t intend to meet with Judge Barrett. Normally, a nominee will come to Washington if they’re not already there and do a round of courtesy visits with different senators to sort of get to know them a little bit, talk a little bit about judging in advance of the Senate Judiciary Committee. So that will save Judge Barrett a little bit of time, I guess, if she’s not meeting with all of the senators.
KB: [00:18:36] Right. A lot of people got the short end of the stick here, but I mostly feel sorry for everyone in the Supreme Court press corps because they had last term go over and had to go into the summer. It’s been an incredibly busy summer with election litigation and other things. And now not only is the term starting in a week with some major cases, but you guys will have a simultaneous coverage of a nomination confirmation, not just a normal one, one that’s happening extremely quickly at the same time.
AH: [00:19:05] I don’t feel sorry for the people that feel sorry for the people in the Supreme Court’s public information office. They are the ones working overtime.
KB: [00:19:13] Right. I feel sorry for them, too. There’s a lot ahead. What are your thoughts? Can she can she be confirmed before the election?
AH: [00:19:20] I mean, it sounds like they intend to do it. It would be much faster than most confirmations. As I said, it was 38 days between Saturday when the president nominated Judge Barrett and Election Day. Justice Ginsburg’s confirmation process was relatively quick. Hers was 50 days. Justice Gorsuch, nd this was a situation in which Justice Scalia’s seat had been vacant for quite a while. So I think there was a little bit of a pressure to fill it. His was 66 days. The average has been around 70 days. I mean, there’s nothing magic about the election, even if, as the president has suggested, he wants to have someone on the Supreme Court to deal with any election related litigation. That election related litigation is not going to magically arrive at the Supreme Court on November 4th. It would take a while to bubble up through the lower courts and arrive at the Supreme Court, but they’ve obviously made a decision that they would like to try and do it. And I think it’s one of those things where you have to borrow an old cliché, if there’s a will, there’s a way.
KB: And there’s certainly there’s certainly a will, so it seems. So you mentioned potential election litigation. But putting that aside, what are the cases coming up which her nomination and confirmation could make a difference? What’s on the docket already, short term and longer term.
AH: [00:20:44] So in the short term, this and this could be a reason why they want to have her on the bench, certainly, putting aside the election related litigation. On November 4th, the Supreme Court will hear oral arguments in a case called Fulton vs. City of Philadelphia. And this is about the balance between religious beliefs and anti-discrimination laws and in particular, anti-discrimination laws that protect LGBTQ people. It’s sort of a slightly different version of the Masterpiece Cake Shop case that the Supreme Court heard a couple of years ago. That was the case of the Colorado baker who did not want to make a cake for a same sex wedding celebration. This is a lawsuit brought against the City of Philadelphia by Catholic Social Services. Catholic Social Services has a policy of not working with foster care parents who are same sex couples because of the agency’s religious beliefs. And as a result, the City of Philadelphia has a policy of not working with Catholic Social Services. And Catholic Social Services says that violates its religious beliefs. The Supreme Court had a hard time with the Masterpiece Cake Shop case back in 2018 while Justice Kennedy was still on the bench. They sort of dealt with it very narrowly. They ruled in favor of the baker, but on the ground that the Colorado administrative agency that had ruled against him had been unfair to him because of his religious beliefs. They didn’t issue some sort of broader constitutional pronouncement. So it’s not clear whether the Supreme Court will do that this time.
[00:22:20] But there may be more likely to be five votes for some sort of broader constitutional rule with a Justice Barrett on the bench. And then the big one on November 10th is the battle over the Affordable Care Act. Whether or not the Affordable Care Act’s individual mandate, the requirement that all Americans buy health insurance or pay a penalty is constitutional now that Congress has taken away, in essence, the penalty for failing to get health insurance. And so there’s a couple of different questions in that case. Back in 2012, Chief Justice John Roberts joined the court’s former liberal justices in saying that the mandate was constitutional because it’s a tax. But even if there were no longer five votes for the proposition that it is still constitutional, there’s a separate question. And then what happens? Is it just that the mandate is no longer a part of the Affordable Care Act? Or does some or all of the Affordable Care Act go with it? And then looking further down the road, it seems very likely that the Supreme Court is going to have to deal with issues relating to abortion. Affirmative action, acouple of weeks ago, the US Court of Appeals for the 1st Circuit heard oral argument in the challenge to Harvard’s admissions policies. The argument is that Harvard is discriminating against Asian-Americans in its admissions policies. Back in 2016, Justice Anthony Kennedy joined the court’s three liberal justices because Justice Kagan was recused. So the vote was four to three to uphold the University of Texas’ admissions policy.
[00:24:00] But that was then. This is now. There’s been quite a change in the composition of the court. And then gun rights. In 2019, in December, the Supreme Court heard a challenge to a New York City rule that banned people who live in New York City and have a license to have a gun from taking their guns outside of New York City. But then they dismissed that case as moot. There is no longer a live controversy, just as Brett Kavanaugh suggested that perhaps the court should take up another case to say more about how broadly the Second Amendment applies, because the Supreme Court has said there is a Second Amendment right to have a gun in your home for self-defense, but really hasn’t said much more than that in about 10 years. But the Supreme Court didn’t do that. They had an opportunity to do that with a whole group of cases right after the New York case. And the conventional wisdom, for what it’s worth, is that there would be four conservative votes on the Supreme Court to take up a Second Amendment case, but that they hadn’t done so because they’re not sure about what Chief Justice John Roberts would do in such a case. And so to sort of take this and project, if Justice Amy Coney Barrett were on the bench, there may well be five votes to take up a Second Amendment case and say more about what the Second Amendment protects.
KB: [00:25:26] All right. Well, it sounds like there’s a lot in the long-term future, but for now, we have the nomination and confirmation process to focus on.
[00:25:34] And as always, Amy, thank you for sharing your knowledge with us. We always learn something. We’re grateful.
AH: [00:25:40] Thank you. We’ll be back to talk about it soon. I imagine there’s going to be plenty more in the weeks ahead.
[00:25:47] That’s another episode of SCOTUStalk.
[00:25:49] Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team Katie Barlow, Katie Bart, Kal Golde, and James Romoser.
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