Amy Coney Barrett, currently a judge on the U.S. Court of Appeals for the Seventh Circuit, is on President Trump’s shortlist for the Supreme Court.
Trump has again and again reminded us that he will only put justices on the Supreme Court who pass his litmus test of overturning Roe v. Wade. Trump said overturning Roe “will happen automatically . . . because I am putting pro- life justices on the court.” Barrett has been critical of Roe, reportedly stating that the Supreme Court created through judicial fiat a framework of “abortion on demand.” In a case before the Seventh Circuit, Barrett joined an opinion that would have upheld an Indiana law placing restrictions on post-abortion practices. Although Barrett recently voted to uphold Chicago’s ordinance preventing anti- abortion protesters from getting within a prescribed distance of those seeking abortion care at clinics, she made it clear that she would have preferred to strike down the law if she were not bound by precedent. If confirmed to the Supreme Court, she would not be forced to adhere to precedent.
In fact, Barrett has repeatedly written that a judge does not have to adhere to precedent if she believes a case was wrongly decided. Her insistence that judges do not need to follow precedent threatens to turn back the clock on rulings about a woman’s right to make her own reproductive healthcare decisions, as well as those that protect the rights of workers, the LGBTQ community, voting rights, and many other critical rights.
The Trump Administration is trying to use our federal courts to deprive millions of Americans health insurance coverage. In addition to attacking the law that ensures insurers cannot deny coverage to people with preexisting conditions, Trump himself explicitly stated he was looking for nominees who are hostile to the Affordable Care Act (ACA). Barrett is already on the record attacking the Supreme Court’s decision upholding the ACA. Barrett also fought efforts to ensure that all women have access to contraceptives.
Barrett dissented from a Seventh Circuit decision holding a federal law restricting felons’ gun rights was constitutional as applied to a felon convicted of mail fraud. The two Reagan appointees in the majority pointed out that Barrett’s position was in conflict with every appellate court that has addressed the issue.
In an era in which several judicial nominees have refused to confirm that the landmark anti-segregation case, Brown v. Board of Education, was correctly decided, Barrett sided against an African-American worker whose company transferred him to another store because of their practice of segregating employees by race. As three dissenting judges noted, this meant that the company’s “separate-but-equal arrangement” was permissible despite Congress’s intent in passing the Civil Rights Act of 1964 to eliminate such blatant racism.
Barrett also voted to reduce protections for older job applicants, ruling that the Age Discrimination in Employment Act does not protect job seekers from policies and practices that have a “disparate impact;” in other words, policies that have the effect of discriminating based on age. She held that the statute did not protect a 58-year-old applicant who was refused an interview for a senior position because the company was only seeking applicants with less than seven years’ experience. The company hired a 29-year-old with far less relevant experience.
Barrett authored an opinion holding that a Yemeni woman’s visa application was properly denied, even though the consular officer’s conclusion that she attempted to smuggle two children into the country was lacking evidentiary support. The woman’s husband, an American citizen, provided evidence that the children, who passed away while the visa application was pending, were theirs—not fraudulent identities as concluded by the consular officer. Reagan- appointed judge Kenneth Ripple dissented. He suggested the consular officer may have operated on a “stereotypical assumption” when concluding the woman was smuggling children. He rebuked Barrett’s opinion, writing, “We have the responsibility to ensure that such decisions, when born of laziness, prejudice or bureaucratic inertia, do not stand.”
Barrett voted to deny a defendant a claim of constitutionally inadequate counsel, when the state trial judge ordered the defendant’s lawyer to not participate in a hearing. The dissenting judges argued that a “silenced lawyer” is practically the same as an “absent lawyer,” thus violating the Sixth Amendment right to counsel.
Barrett also saw no problem with a prosecutor withholding the fact that the only eyewitness to the crime’s testimony was hypnotically-induced. Barrett would have denied the defendant’s habeas corpus petition.