As the Senate confirmation hearings for Supreme Court Justice Nominee, Amy Coney Barrett, continue, she faces plenty of questions about her legal record. In cases on gun laws, immigration, a woman’s reproductive rights, and discrimination, some of her legal opinions leave little doubt on the negative impact her confirmation would have on Black Americans.
Born in Louisiana, she attended Rhodes College and Notre Dame Law School. She is an accomplished, highly educated woman. Attending college on a scholarship and graduating first in her class, she worked as a law clerk under Supreme Court Justice Antonin Scalia until 1999. She practiced law in Washington DC until returning to Notre Dame in 2002 as a professor. In 2017, Trump nominated her to the US Court of Appeals for the 7th district based in Chicago. The 7th Circuit Court has jurisdiction over Wisconsin, Illinois, and Indiana, where she currently resides. She is a married mother of seven, including two adopted black children from Haiti.
If confirmed, she would become the youngest Supreme Court Justice at 48 years old. Right-wing conservatives and the religious right have praised her as a strong conservative on abortion, gun rights, and immigration issues. A devout Catholic, her faith has come up as a questionable influence over her potential legal decisions. She is a member of the group called “People of Praise.” Former members have described the group as a “family-like,”; a group that adheres to strict gender roles, where single members have to get permission from their “head” (mentors assigned to young singles) to date. She has frequently lectured for the Alliance Defending Freedom, which was designated an Anti-LGBTQ hate group by the Southern Poverty Law Center. When questioned during the confirmation hearings about the group’s efforts to criminalize homosexuality, she said she was unaware of those efforts.
The Affordable Care Act
The intersection of her judicial philosophy and faith is important when it comes to important issues facing the Supreme Court. Trump has repeatedly stated his intentions when nominating judges are to have those who oppose the Affordable Care Act and those who would be open to overturning Roe vs. Wade. The Supreme Court will hear a challenge to the Affordable Care Act just one week after the election. Suppose the court rules that the ACA is unconstitutional in whole or in part? In that case, it could affect millions of Americans, particularly those with pre-existing health conditions such as diabetes, cancer, and heart disease. All of which affect Black Americans at higher rates than other races. Under the Affordable Care Act, the number of uninsured Black Americans decreased by 5.1%, according to the US National Library of Medicine National Institute on Health. The amount of uninsured Black Americans would increase significantly if the ACA is repealed. As a university professor, Amy Coney Barrett stated in a law review essay,
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power. Barnett vehemently objects to the idea that a commitment to judicial restraint— understood as deference to democratic majorities—can justify a judicial refusal to interpret the law as written.”- Amy Coney Barrett, 2017
Women’s Reproductive Rights
A “Super-Precedent,” also called “Stare Decisis,” which in Latin translates to “let the decision stand,” has been frequently discussed at Amy Coney Barrett’s confirmation hearings. She said there were a handful of cases that she considered “super-precedents” such as Brown v. Board of Education, the 1954 ruling that outlawed racial segregation in public schools, and Marbury v. Madison in 1803 which gave courts the authority to strike down laws as unconstitutional. She declined to include Roe V Wade in that category. Roe V Wade was the 1973 Supreme Court Decision that legalized abortion nationwide. In an article written for Notre Dame Law School, she stated abortion is “always immoral” and said that Catholic judges should keep the law and the church separate. However, in 2006 she signed an anti-abortion ad that stated, “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” During her confirmation hearings, she has stated that she would not allow her beliefs to influence her work as a judge.
It is not just legal access to an abortion she is against; she has also voted against the requirement included in the Affordable Care Act that requires employers to provide contraceptives as part of their medical plans. She signed a letter written by The Beckett Fund, another hate group designated by the Southern Poverty Law Center that stated employers had a religious right to deny employees contraceptive coverage. The Beckett Fund is an organization that opposes church and state separation.
Amy Coney Barrett, in many cases, has upheld racial discrimination. In the 2019 case of Terry Smith, a Black transportation employee in Illinois, she upheld his workplace discrimination lawsuit’s dismissal. Terry Smith sued his employer after claiming he was fired and called a racial slur by his supervisor.
She stated, “The n-word is an egregious racial epithet that said, Smith, can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.” Although Smith testified that his time at the company caused him psychological distress, Amy Coney Barrett stated Smith “introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace.”
Race and the Justice System
Under questioning by Sen. Cory Booker, Amy Coney Barrett acknowledged the criminal justice system had implicit bias but did not address how to fix it.
“As for putting my finger on the nature of the problem, whether as you say it’s outright or systemic racism or how to tackle the issue… giving broader statements or making broader diagnoses about the problem of racism is beyond what I’m capable of doing as a judge,”
She also shared her interactions with her adopted black children when speaking about the George Floyd case. Stating it was very emotional for her and her family, she said she cried with her children after watching the video.
“I mean, my children to this point in their lives had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence,” she said. “And for Vivian, you know, to understand there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. It’s a difficult one for us like it is for all Americans all over the country.”
Her record is mixed on criminal justice matters, in the case of Schmidt v Foster, where the defendant’s lawyer was not allowed to participate in a pre-trial hearing. The majority ruled that the defendant was denied his right to effective counsel under the sixth amendment. Barrett dissented, stating the defendant was not denied the right to counsel. In the case of Sims V Hyatte, she disagreed again with a ruling to overturn a conviction for attempted murder. In this case, prosecutors failed to disclose key evidence that the star witness testimony was obtained by hypnosis. She wrote that it was not sufficiently deferential to the state court determinations.
She also dissented on a case involving two men in prison shot by a corrections officer in the middle of a fight in the jail. The case reversed the lawsuit’s dismissal, but Barrett wrote that the men did not provide enough evidence, despite video and medical records.
If Amy Coney Barret is confirmed as the next Supreme Court Justice of the United States, it is sure to tilt the scales of justice to the conservative right. With the most nominations since Nix, Trump will have created a 6-3 conservative majority. These appointments have the power to affect the rights of women, immigrants, minorities, and the LGBTQ community for generations. While Democrats argue that a final vote on the Supreme Court Justice nominee should not happen until after the elections, Republicans push for a quick confirmation.
Danielle Sanders is a journalist and writer living in Chicago. Find her on social media @DanieSandersOfficial.