The Many Questions Amy Coney Barrett Won’t Answer

October 23, 2020

When President Trump nominated Amy Coney Barrett, Alliance for Justice thoroughly reviewed her record. As detailed more fully in our report, her record makes clear that her confirmation to the Supreme Court would strip healthcare from millions and erode the rights of women, racial minorities, and LGBTQ Americans.

Despite her extensive writings and public speeches about how she would reshape the federal judiciary to undermine hard-won civil rights and legal protections, Barrett’s testimony before the Senate Judiciary Committee only confirmed our grave concerns, as described in our post-hearing analysis. When pressed on her own record and critical issues vital to the American people, she was evasive and misleading and only reinforced the danger she poses to the nation.

Alliance for Justice has now reviewed her 184-page response to written questions (“QFR”) from senators. And, again, her refusal to answer key questions and affirm basic legal principles is stunning, and scary.

Barrett on Access to Healthcare

Just one week after Election Day, the Supreme Court is set to hear oral arguments in a Republican-led challenge to the Affordable Care Act, which she has previously written should be overturned. Despite this imminent threat to the health of millions, Barrett:

  • Refused to answer whether the Affordable Care Act is constitutional or whether NFIB v. Sebelius, which upheld the law,was correctly decided.
  • Would not answer whether she believes the Court should approach the ACA case with the goal of leaving the law as intact as possible.
  • Refused to say that the Supreme Court decision upholding the constitutionality of Social Security was correctly decided. 
  • Refused to answer whether Medicare is constitutional.

Barrett on Reproductive Rights

In the past, Barrett has consistently expressed her opposition to reproductive rights, and conservatives see her as a sure vote to repeal Roe v. Wade. Despite her past statements, in responding to Senators’ questions Barrett:

  • Refused to say whether Roe v. Wade, which ensures abortion rights, or Griswold v. Connecticut, which established the right to use contraception, were correctly decided.
  • Would not answer whether she agreed that the right to choose “is something central to a woman’s life, to her dignity.”
  • Would not say whether a state could ban or even criminalize in vitro fertilization (IVF), abortion, or birth control.

Barrett on LGBTQ Equality

Barrett previously served on the board of a private school with strict anti-LGBTQ policies, including discrimination against LGBTQ persons in enrollment and hiring decisions. She also admitted to accepting an honorarium from Alliance Defending Freedom, a group that supports the recriminalization of homosexuality, but she has repeatedly denied knowing anything about its anti-LGBTQ record and challenged its classification as a hate group as “a matter of public controversy.” When asked to clarify her views on LGBTQ rights, Barrett:

  • Refused to say whether Lawrence v. Texas, which ruled that private sexual intimacy between consenting adults cannot be criminalized, was correctly decided.
  • Refused to say whether Obergefell v. Hodges, the landmark case recognizing the right to same-sex marriage, was correctly decided.
  • Would not confirm whether Bostock v. Clayton County, which extended federal anti-discrimination laws to LGBTQ people,was correctly decided.
  • Would not confirm whether sexual orientation or gender identity are immutable traits rather than a “choice.”
  • Refused to say whether states can discriminate against LGBTQ persons.
  • Refused to say whether or not the Fourteenth Amendment or Title IX protect against discrimination on the basis of sexual orientation or gender identity.
  • Refused to say whether someone can be banned from military service because of their sexual orientation or gender identity.

Barrett on Racial Equity

As a judge on the Seventh Circuit Court of Appeals, Barrett has already dismissed the harmful impact of racially hostile work environments and upheld “separate but equal” employment policies. When asked how she would approach racial justice on the Supreme Court, Barrett:

  • Refused to say whether systemic racism exists, calling it a “policy question.”
  • Refused to say whether she disagreed with President Trump’s view that a judge’s race or ethnicity can be a basis for disqualification.
  • Refused to say whether she disagreed with Justice Scalia when he suggested, during oral arguments for Fisher v. University of Texas at Austin (2016), that Black students may benefit from going to “a less advanced school” or “a slower track school where they do well.”

Barrett on Criminal Justice

Barrett has consistently ruled against fundamental fairness in the criminal justice system, including voting to reverse a jury award of $6.7 million to Shonda Martin, a 19-year-old pregnant woman held at a Milwaukee County correctional facility who was raped by a prison guard. When asked questions about how she would uphold constitutional protections for the criminally accused as a Supreme Court Justice, Barrett:

  • Refused to say whether Mapp v. Ohio (1961), which established that the Fourth Amendment prohibits the use of evidence that was obtained illegally,was correctly decided.
  • Refused to say whether she believes that placing someone in a pillory (a wooden framework with holes for the head and hands) or branding someone is “cruel and unusual” under the Eighth Amendment.

Barrett on Presidential Authority

Since taking office President Trump has abused the presidency for his own personal and political gain. Despite this threat to our democracy, Barrett would not answer even basic questions about presidential authority, such as:

  • Whether the President must abide by Supreme Court decisions.
  • Whether Trump’s statement “I have an Article II, where I have the right to do whatever I want as president,” was legally accurate.
  • Whether the Emoluments Clause of the Constitution is meant to prevent corruption.
  • Whether the president has the power to pardon himself for past or future crimes.
  • Whether the President can unilaterally delay the presidential election, even though only Congress is specifically empowered to set the election date.
  • Whether the Constitution requires a peaceful transition of power or whether every president should commit to a peaceful transfer of power.

Barrett on Ensuring Fair Elections

President Trump and Senate Republicans have clearly indicated that they want Barrett on the Court so that she and other Republican appointees, rather than the American people, can decide the upcoming election. When asked to clarify her views about election laws, Barrett:

  • Refused to say whether it is illegal to vote twice in a federal election.
  • Would not state whether communities of color face disproportionate obstacles to voting or whether voter discrimination still exists.
  • Would not confirm whether the circumstances of safely voting in the 2020 election are “substantially different” than a regular year due to the COVID-19 pandemic, or whether states have a responsibility to maintain access to voting.
  • Refused to say whether she thinks voting by mail is legitimate.
  • Refused to say whether she believes that in-person voter fraud is a widespread problem, though research has consistently shown it is not.
  • Would not answer whether federal law allows the president to deploy local law enforcement to monitor elections.

Barrett on Environmental Protection

Climate change represents an existential threat to our planet, and its existence is proven by overwhelming scientific evidence. Nevertheless, Barrett:

  • Refused to say whether climate change is happening, and called it a “controversial subject.”
  • Refused to say whether cars that burn gasoline emit pollutants into the air when driven or whether power plants that burn coal emit pollutants into the air when operated.
  • Refused to answer whether she accepts the finding of the 2018 National Climate Assessment that “Earth’s climate is now changing faster than at any point in the history of modern civilization, primarily as a result of human activities.” 
  • Would not say whether she believes regulations implemented by the Environmental Protection Agency are constitutional.

Barrett on the Science of COVID-19

As our nation continues to combat a deadly pandemic that has killed over 220,000 in the United States — and as Trump-appointed judges continue to strike down laws responding to this crisis — Barret would not answer even the most basic of questions about COVID-19.

  • Barrett stated that the “dangerousness” of COVID-19 is a matter of public debate.
  • Barrett refused to say whether the use of masks inhibits the spread of COVID-19.
  • Barrett refused to say whether social distancing inhibits the spread of COVID-19.
  • Barrett refused to say whether ventilation of indoor spaces inhibit the spread of COVID-19.

Barrett on Gun Safety

On the Seventh Circuit, Barrett dissented from a decision upholding a federal law that restricts access to guns by felons convicted of serious crimes. Despite the scourge of gun violence that is currently claiming thousands of American lives each year, Barrett:

  • Refused to say whether she thinks that bump stocks, high-capacity magazines, and expanding bullets that allow an assault rifle to rapidly and efficiently pulverize bones, tear blood vessels, and liquefy organs make for a “dangerous and unusual weapon” (quoting Scalia’s majority opinion in District of Columbia v. Heller).
  • Would not say whether the Second Amendment includes a right to 3-D print guns at home.