In the News
Amy Coney Barrett
Supreme Court of the United States
Amy Coney Barrett fought to undermine health care for millions in her attack on the Affordable Care Act, and publicly criticized Chief Justice John Roberts for his decision to uphold the law. She also fought efforts to ensure that all women have access to contraceptives. Barrett has been critical of Roe v. Wade, stating that the framework of Roe essentially permitted abortion on demand.
As a judge, Barrett sided against an African American worker who had been transferred to another store because of a company’s policy of segregating their employees, finding that the company’s “separate-but-equal arrangement is permissible.” She also joined a ruling siding against the Army Corps of Engineers’ efforts to protect wetlands in Illinois under the Clean Water Act, and has ruled to dismiss claims by workers who were denied access to justice to uphold workers’ denial of benefits.
She also would have ignored the First Step Act’s lower mandatory minimum sentences in the case of Hector Uriarte, who had been unlawfully sentenced before the Act passed and was now being re-sentenced. The judges argued that the mere existence of a previous sentence—even one vacated due to legal error—meant the First Step Act should not apply. This interpretation would have resulted in a mandatory additional 25 years’ imprisonment for Uriarte.
Like other Trump nominees, she has shown an inclination to rule in favor of the rights of the wealthy and powerful over the rights of all. The Alliance for Justice strongly opposes the consideration of Barrett for a seat on the U.S. Supreme Court.
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.
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.