After a trailblazing career as both a lawyer and a jurist, on September 18, 2020, Supreme Court Justice Ruth Bader Ginsburg passed away. Justice Ginsburg left a historic legacy. Because of her unrelentless fight to uphold our nation’s highest ideals and ensure equal rights for everyone, our nation is more just. On September 26, 2020, President Trump nominated Amy Coney Barrett to fill her seat.
No Supreme Court justice in history has ever been confirmed later than July of an election year. Indeed, in 2016, Senate Republicans refused to even give Merrick Garland a hearing when Justice Scalia died nine months before election day, asserting that the American people should decide who should select his replacement.
Yet, just over an hour after Ginsburg’s death was announced, Senator McConnell issued a statement stating that Trump’s chosen nominee would “receive a vote on the floor.” Despite the fact that tens of thousands of people had already cast their vote for the next president, Republican Senators quickly expressed support for moving forward, with a sham expedited process, to confirm the White House’s nominee to the Court—even without knowing who that nominee would be.
After months of failing to address the health, economic, and racial justice crises rocking the nation, Republicans made clear that their real priority is advancing their ideological agenda through the courts at any cost rather than representing the will of the American people.
The fact is, anyone President Trump would nominate has no place on the Court. The Senate “process” — just weeks before the election — is illegitimate and unsupported by a majority of Americans.
The stakes for the American people cannot be overstated. Every person on the President’s short-list has a troubling record of undermining critical civil rights and protections. Each one of them has shown their commitment to eliminating access to quality health care for millions, overturning Roe v. Wade, and siding with the wealthy and powerful over everyday Americans and corporations over workers and consumers. And most shockingly, Trump has already argued his nominee needs to be confirmed in time to rule in the event of a disputed election, placing the independence of the Court in further jeopardy.
But, of all the potential nominees, Amy Coney Barrett stands out somehow as particularly dangerous.
At the outset, Barrett meets two troubling litmus tests:
- Trump has explicitly stated he will nominate judges who are hostile to the Affordable Care Act (ACA). Trump said “my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.” Barrett, who criticized Chief Justice Roberts for not invalidating the law, meets that test. The Supreme Court will hear a challenge to the ACA just one week after the election. If confirmed, she literally threatens the health of millions of people.
- Trump has said that he will only put justices on the Supreme Court who will overturn Roe v. Wade claiming that overturning Roe “will happen automatically . . . because I am putting pro-life justices on the court.” Barrett has been vocal in her criticism of Roe. She has also said that judges are not bound by stare decisis, the doctrine that requires judges to follow well-settled law. Her decisions on the Seventh Circuit have already demonstrated a commitment to erode reproductive rights.
Further, on the Seventh Circuit, Barrett has consistently ruled in favor of the wealthy and powerful over the rights of all. Indeed, one thing is clear: if Congress has enacted a law to protect the American people, Barrett will find a way to eviscerate its protections.
For example, Barrett weakened Title VII of the Civil Rights Act – siding against a Black worker whose employer established a “separate-but-equal” policy of segregating their employees by race. She ruled to gut protections for older workers. She overturned precedent to inhibit the ability of the Federal Trade Commission (FTC) to protect consumers. She weakened Title IX protections, making it easier for students who are held accountable for sexual assault to sue their schools for sex discrimination. And, contrary to every court that had looked at the issue, she would have prevented Congress from keeping weapons out of the hands of convicted felons.
Finally, Barrett repeatedly eroded protections for a constitutional criminal justice system and regularly attacked the rights of immigrants.
Barrett’s views, as evidenced in the cases highlighted in this report, are so extreme that she is challenged by other Republican appointed judges. Her views in many cases are contrary to the overwhelming weight of authority, and often unanimous authority, of other circuit courts. As Mark Joseph Stern noted, she has a “particularly cruel vision of the law.” Her opinions have inflicted real pain and suffering to workers, women, consumers, individuals in the criminal justice system, and immigrants.
One week after the election, in the midst of a pandemic, the Supreme Court will consider whether to take away health care from millions of Americans, including those with preexisting conditions. Donald Trump and Republicans — including Republican appointed judges on the Supreme Court — continue to attack our democracy, green light voter suppression, and undermine the legitimacy of our elections themselves. Conservatives are relentless in their attacks on equal rights for persons of color, women, and LGBTQ Americans. The wealthy and powerful have used the courts to attack protections for workers, consumers, and clean air and water.
Justices Neil Gorsuch and Brett Kavanaugh, and scores of Trump’s lower courts judges, have already eroded critical rights and legal protections. We know from experience the harm that Trump’s next jurist will cause. After extensively reviewing her record, Alliance for Justice has no doubt that Amy Coney Barrett, if confirmed, would be a leader in turning back the clock for decades to come on the rights and protections that millions of Americans rely on.
AFJ strongly opposes nomination of Amy Coney Barrett and vigorously urges the Senate to reject her confirmation. The health, and indeed the very lives of millions of Americans truly hang in the balance.
This report may be updated. Typically, we issue these detailed reports after the nominee has submitted their paperwork to the Senate, so it is possible there are some speeches and other materials not yet available. That said, this is a comprehensive overview of Barrett’s jurisprudence and views to date.