Amy Coney Barrett’s Confirmation: Adding Fuel to the Political Fire of 2020

By Aurora Walker.

With a global pandemic, a massive economic slump, widespread civil unrest, and a contentious presidential election, the year 2020 has turned up the heat on political drama in America. To top all of this off, President Trump added even more fuel to the fire by nominating Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court.

Ginsburg died on September 18, and in the following days and weeks,Americans paid tribute to her life and legacy. President Trump nominated Barrett just eight days after Ginsburg’s death and just a few weeks before the 2020 general election. A majority of Americans opposed the timetable of her appointment. While some were elated at the prospect of a young, conservative woman on the court, others had concerns about Barrett’s judicial views and how they would affect the new dynamic of the Court.

"President Trump Nominates Judge Amy Coney Barrett for Associate Justice of the U.S. Supreme Court" by The White House is marked with CC PDM 1.0

So why exactly has Barrett’s appointment been so controversial? Let’s take a look at who Barrett is, unpack the surrounding circumstances, and address a few of the major concerns that have been raised.

Who is Amy Coney Barrett?

At the age of forty-eight, Barrett, a married mother of seven, is the youngest justice on the Court. She grew up in New Orleans in a tight-knit Catholic community now known as the People of Praise. She graduated first in her class from Notre Dame Law School, clerked on the D.C. Circuit court, then clerked for Justice Antonin Scalia on the Supreme Court, which was arguably “the most important professional move of her life.”After her clerkships, she worked as an attorney for a short time, then became a well-loved professor at her alma mater. In 2017, President Trump appointed her to be a judge on the 7th Circuit Court of Appeals. She has established a reliable conservative reputation as a professor and judge. She is a textualist and originalist, subscribing to the same constitutional interpretive methods as her mentor, Scalia. Legal scholars observe that “Barrett has the same consistency and commitment” to the right as Ginsburg did to the liberal side of the bench.

What were the circumstances surrounding Barrett’s appointment?

One of the reasons for the controversy over Barrett’s nomination is what many have seen as the Republican party’s hypocritical behavior. In February 2016, Justice Scalia died, and President Obama nominated Judge Merrick Garland to fill the vacancy. Senate majority leader Mitch McConnell (R)declared that any nominee by President Obama would be null and void. Eleven other senators on the Senate Judiciary Committee signed a letter with the same sentiment. The Senate never held any proceedings for the Garland nomination. There is no precedent for the Senate to completely ignore a Supreme Court Justice nominee, but that’s exactly what happened in 2016.

Fast forward four years and the very same Republican Senate headed by McConnell pushed Barrett’s confirmation through just weeks before the presidential election. Scalia died with almost a full calendar year left in Obama’s presidency, and the nomination was given to the next president. But Ginsburg died just  six weeks before the general election and the Senate rushed Barrett’s confirmation hearings. While what happened with Barrett’s appointment was not in violation of the Constitution or any laws, some see it as hypocritical for the same Senate leaders to act so differently solely based on what party the sitting president belongs to. There are mixed views on whether or not this was the right thing for the Senate to do. But now that she has been appointed, what can we expect for the future of the Supreme Court?

What major concerns do some Americans have?

Reproductive Rights

One of the most divisive issues raised is Barrett’s views on women’s rights. During her confirmation hearings, Barrett  did not clearly answer questions about upholding abortion, contraception, and fertility treatment rights. She failed to include Roe v. Wadeas a “super-precedent,” indicating that she views it as a case that could be overturned.

In addition to her professional treatment of reproductive rights, she has made it clear that she personally believes that life begins at conception. She signed an open letter in 2006 that described Roe v. Wade and its legacy as barbaric. While she reassured the senators during her hearings that her personal views would not affect her judgments on the bench, it is only natural to worry that her personal, moral, and religious beliefs and affiliations will have some influence on her decisions.

Gun Rights

In a 2019 dissent, Barrett wrote that laws forbidding nonviolent felons from owning guns were unconstitutional. This went even further than Scalia’s 2008 opinion in District of Columbia v. Heller where the Court found that owning guns for self defense was constitutional, but upheld laws forbidding felons from owning guns . Additionally, the Supreme Court has turned down many Second Amendment cases this year, but with Barrett on the bench, they are more likely to grant review.

LGBTQ Rights

When asked about same sex marriage rights, Barrett stated that she had no agenda and that she does not discriminate based on sexual preference. Some have criticized her terminology. Members of the LGBTQ community think that the term “sexual preference” indicates that sexuality is a personal choice rather than a characteristic someone is born with. While she later apologized for possibly offending, she did not correct her language. This could be putting too much focus on one word, but it has been a small indicator of her attitudes surrounding LGBTQ rights.

Health Care

Many fear that the Affordable Care Act is in jeopardy with Barrett on the bench. In 2017 she published a law review article that criticized Chief Justice Robert’s opinion that upheld the ACA. She thought that the Court did not respect the text of the law, pushing it beyond what it meant in order to save it from being struck down on constitutional grounds. Although she stated in her confirmation hearings that she has no agenda for the ACA, her personal opinion is very clear from her previous academic article.

Voting

President Trump was eager to have a full bench before the election. His opinion is that the presidential vote will end up at the Supreme Court, and that nine justices will be necessary to determine the election results. In her confirmation, Barrett said that she has not made any promises about how she would handle an election dispute and asked the senators to trust her integrity. She did not say if she would recuse herself if the election goes to the Court. But under the current circumstances, where the sitting president has hinted that there may not be a peaceful transfer of power, some have doubts about Barrett’s ability to be unbiased.

The Takeaway

Underlying all of these concerns surrounding Amy Coney Barrett’s appointment is the worry that the Supreme Court is becoming an increasingly partisan branch of the government, rather than the objective, independent body that it is designed to be. While some don’t think that Barrett’s presence on the bench will drastically alter future judgements, only time will tell whether Barrett will be true to her promises of neutrality, or if her conservative attitudes will change the history of our country.

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By Aurora Walker.

J.D. Candidate, 2022

Aurora Walker is a 2L Staff Writer on ASLJ from Salt Lake City, UT. She earned her bachelor’s degree from Utah State University in 2016, majoring in Liberal Arts and minoring in Music. She spends her free time with her husband, daughter, and dog and enjoys baking, singing, and reading.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.