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- Nov 27, 2020
- 11 min read

Confirmation of Amy Coney Barrett to the Supreme Court of the United States of America

Alessandro Rossi discusses the appointment of Amy Coney Barrett to the US Supreme Court. Donald Trump's decision to appoint a Justice in the twilight of his presidency is controversial in both form and substance. This news story examines these issues and provides insight as to how this may shape the American judicial system for years to come.

On the eve of the 18th of September 2020, President Trump held a rally in Minnesota. With Air Force One on the runway in the background and Elton John’s ‘Tiny Dancer’ audible from a nearby stage, the President walked over to take questions from the press pool. Straining to hear over the roar of Air Force One’s engines, and the sound of ‘Tiny Dancer’ adding a surreal, soundtracked quality to the exchange, President Trump seemingly learnt firsthand of the death of Ruth Bader Ginsburg.[1]

For a President who has sought to stage-manage his presidency, this appeared to be a rare moment of candour. President Trump claimed “I did not know that,” before remarking that Justice Ginsburg “was an amazing woman who led an amazing life,” and that he was “saddened to hear” of her passing.[2] The President’s subsequent nomination of Amy Coney Barrett to the vacancy created by Justice Ginsburg’s passing would ultimately rival that of Justice Brett Kavanaugh’s in its controversy, and would dramatically alter the partisan balance of the Supreme Court in a manner not seen for almost a century.

On Tuesday, the 27th of October 2020, Amy Coney Barrett was sworn in as the 103rd Associate Justice of the Supreme Court of the United States. The previous day, the Senate had voted 52-48 along party lines to confirm Judge Barrett, and that evening the first of two oaths were completed during a 'swearing-in' ceremony at the White House.[3]

The preceding nomination of Judge Kavanaugh to the Supreme Court in October 2018 had proven contentious on account of allegations concerning the Justice’s suitability for office, owing to serious allegations of sexual assault.[4] By contrast, the controversy over the nomination of Judge Barrett centred on the legitimacy of the nomination process itself, and the fear among many Americans that a solid conservative majority would exert a seismic political influence upon many key legal and societal issues in American life.

This most recent appointment caps a remarkable project by the Trump Administration to redefine the federal courts, which has seen 217 appointments as of September 2020, including three appointments to the Supreme Court.[5] Much of President Trump’s success in this regard is due to the partnership between the Republican Senate Majority Leader, Mitch McConnell, and the Federalist Society, a conservative organisation which has promoted potential judicial nominees who subscribe to a textualist or originalist judicial philosophy.[6]

After the retirement of Senior Justice Anthony Kennedy, Judge Barrett was considered for the vacancy alongside the eventual nominee Judge Kavanaugh, however, President Trump was reported to have remarked: “I'm saving her for Ginsburg.”[7] The Supreme Court Justice to whom President Trump was referring, Ruth Bader Ginsburg, was an iconic figure of the American progressive movement, regarded by many as a key advocate for many of the most contested causes in American politics, most notably that of abortion rights. In stark contrast, Judge Barrett carried a particular appeal amongst Republicans on account of her devout Catholic faith and strict adherence to an originalist judicial philosophy.

On the 18th of September 2020, six weeks away from the date of the 2020 Presidential Election, Justice Ginsburg passed, succumbing to a long battle with cancer. Shortly before her death, it was reported that Justice Ginsburg dictated a statement, expressing that “my most fervent wish is that I will not be replaced until a new president is installed.”[8] Despite the reflective tone of President Trump’s remarks upon learning of Justice Ginsburg’s death, the President made clear his intention to nominate a replacement before polling day, assuring supporters at a rally in North Carolina that “I will be putting forth a nominee next week – it will be a woman.”[9] Whilst initial commentary touted Judge Barbara Lagoa as a strong contender, Judge Barrett was unveiled as President Trump’s nominee on the 26th of September during a now-notorious ceremony in the White House Rose Garden, which consequently saw key figures of the Trump Administration test positive for COVID-19.[10]

On the face of it, Judge Barrett’s profile was unremarkable by US judicial standards. Judge Barrett was a protégé of Justice Antonin Scalia, a devout Catholic himself, who was regarded as the modern intellectual explicator of the originalist philosophy.[11] Judge Barrett attended Notre Dame Law School on a full scholarship, where she served as executive editor of the Notre Dame Law Review and graduated first in her class.[12] Following her graduation, Judge Barrett clerked for Judge Silberman, and then Justice Scalia.[13] Judge Barrett subsequently worked on Bush v. Gore whilst employed at Baker Botts, and then enjoyed a distinguished academic career prior to her nomination to the Seventh Circuit.[14]

Following her nomination to the Supreme Court, the American Bar Association rated Judge Barrett as “well qualified,” its highest rating available.[15] Those opposed to the nomination could not dispute Judge Barrett’s credentials, and instead, the attacks upon the nominee’s suitability were concerned with the influence many feared the Judge’s Catholic faith might exert upon her rulings.

A particular focus of these concerns was directed towards Judge Barrett’s membership of the Catholic group, 'People of Praise', which was alleged (erroneously it seems) to have been the inspiration for the totalitarian theocratic regime depicted in Margaret Atwood’s The Handmaid’s Tale.[16] Whilst past comments by Justice Barrett suggest that she regards the overturning of Roe v. Wade as unlikely, those opposed to her nomination have pointed to anecdotal evidence that she does indeed oppose abortion, and is willing to weigh in on the finer points of how this right is regulated. Such evidence comes in the form of an advertisement Justice Barrett added her name to in 2006, which affirmed the right to life and characterised Roe v. Wade as “barbaric”.[17] Similarly, those opposed have pointed to a 2019 case in which Judge Barrett (as she was then) voted with the minority, opting to rehear a ruling which upheld a challenge to an Indiana law imposing a restriction in relation to abortion.[18]

A comment by Marjorie Dannenfelser, the president of the anti-abortion group, Susan B. Anthony List, perhaps crystallises why so many regarded Judge Barrett’s nomination as such an existential threat; “She is the perfect combination of brilliant jurist and a woman who brings the argument to the court that is potentially the contrary to the views of the sitting women justices.”[19] Since the disappointment suffered by the Christian wing of the Republican Party in the confirmation of Justice O’Connor, who supported the fundamental right to abortion, many within the American conservative movement have sought a woman who would serve as a right to life advocate on the Supreme Court.

In response to a hard line of questioning by Senator Diane Feinstein during hearings in 2017, Judge Barrett stated that judges should not “follow their personal convictions in the decision of a case, rather than what the law requires.”[20] Despite this assurance, the role of any Justice is, as Chief Justice John Roberts remarked, “to call balls and strikes and not to pitch or bat.”[21] Whilst this statement may have been intended as a reflection upon equitable judgment, a great deal of legal scholarship has subsequently highlighted how it in fact betrays the ineluctably subjective nature of judgment.[22] Regardless of assurances of impartiality, progressives across America fear that Justice Barrett’s originalist judicial philosophy, and her Catholic ontology, will inevitably lead to an unfavourable hearing on many of the hard-won rights of the past century.

The prospect of the longstanding 5-4 conservative majority on the Supreme Court being transformed into a 6-3 split ensured that the personal beliefs of a nominee would be more heavily scrutinised. Under the leadership of Chief Justice John Roberts, the Supreme Court had taken a cautious approach towards key issues such as abortion rights, voting rights, and restrictions on the right to bear arms. Whilst influential decisions were still reached in favour of both Republicans and Democrats respectively, most notably, in the rulings of Citizens United v. FEC and the Court’s upholding of most of the provisions of the Affordable Care Act, the Court has generally maintained a reserved approach towards landmark decisions.

Much of the contention over Justice Barrett’s confirmation also stems from what seemed to be a new precedent set by the Republican treatment of President Obama’s nominee, Merrick Garland, in 2016. Rather than allowing a vote to be held on Judge Garland’s nomination, the Senate Majority Leader, Mitch McConnell, refused, insisting that the winner of the 2016 Presidential Election should fill the vacancy.[23] The prominent South Carolina Senator, Lindsay Graham, even went as far as to publicly comment that if a similar situation were to occur under a future Republican Presidency, then his words spoken in opposition to a vote in 2016 were to be used against him.[24] Senator Graham’s reasoning for this apparent change of tack was that in 2016, the Senate and the Presidency were in the hands of different parties and that after the treatment of Justice Kavanaugh “the rules have changed as far as I'm concerned.”[25] Despite the Senator’s creative reasoning, this volte-face was seized upon by Democrats as prime evidence of an aggressive Republican agenda to install a disproportionate conservative majority on the Supreme Court, which could strike down key progressive achievements and even the legislation of a future Democratic Presidency.

Following the nomination of Judge Barrett to the Supreme Court, the Democratic Senate Minority Leader, Chuck Schumer, characterised the events as “the most illegitimate process I have ever witnessed in the Senate.”[26] When President Trump visited Justice Ginsburg’s casket on the steps of the Supreme Court shortly before the unveiling of Judge Barrett as the nominee, he was loudly booed by crowds who had gathered to mourn.[27] Despite this strength of feeling amongst Democratic supporters and attempts to sway moderate Republican Senators, such as Lisa Murkowski, there was little that could be done to block a Republican majority from confirming Judge Barrett to the vacancy.

Since being confirmed to the Supreme Court, Justice Barrett has participated in the ongoing case of Fulton v. City of Philadelphia and the emergency application to grant a stay of execution for Orlando Hall.[28] [29] The former case concerns alleged discrimination by the City of Philadelphia in its failure to renew a contract with a Christian fostering agency, due to the agency’s unwillingness to serve same-sex couples. It was reported that Justice Barrett’s questions were “evenhanded and did not reveal her position”.[30] With regard to the latter case, no breakdowns of voting are provided for emergency applications, however, Justice Barrett did note her dissent as did the Justice’s from the liberal wing of the Court.[31] Whilst President Trump may have hoped that the newly solidified conservative majority on the Supreme Court would deliver him a second term in a decision akin to Bush v. Gore, the faltering of Republican legal challenges to the 2020 Election appears to have made such an outcome unlikely. This state of affairs will also entail that the question of Justice Barrett’s recusal from such a case, as called for by senior Democrats, also remains unnecessary.[32]

The new conservative majority delivered by Justice Barrett’s confirmation has made it likely that eventually, a major ruling will be delivered on the subject of one of the many areas of contention in American life. Infuriated by the manner in which Justice Ginsburg’s vacancy was filled, senior Democrats have raised the possibility of expanding the number of Justices on the Court in order to restore balance, as well as the introduction of term limits for Justices.[33] The viability of such responses may well depend on the outcome of the two Senate run-off votes in Georgia due to be held in January 2021.[34] Whilst the Democrats hold Congress and the Presidency, the Republicans currently possess a 50-48 majority in the Senate. Although the Republicans are expected to hold at least one of these seats, if the Democrats can repeat their electoral success in Georgia then such reforms may well be possible and could limit the power that many Americans fear conservatives now possess in the Supreme Court.

If, as it is widely expected, the Republicans retain their slim majority in the Senate, then any such reforms appear to be impossible and the conservative majority on the Supreme Court is likely to remain. However, Justices of the Supreme Court have proven to be fiercely independent in their analysis, and often deliver rulings which do not conform to superficial expectations on the basis of an assumed ideology. In recent Supreme Court rulings on both LGBT rights and Native American land rights, President Trump’s first appointment Justice Neil Gorsuch sided with the Court’s liberal wing, underlining this possibility.[35] Another point noted by Lord Sumption is the tendency for Justices to be “absorbed into (the Court’s) collective culture,” subsequently becoming protective of the Court’s reputation and prestige.[36] It is partly this tendency, Lord Sumption reasons, which has seen decisions such as Roe v Wade continue to stand, with Justice’s who were formerly critical of the Court adopting a different perspective once seated on its bench.[37]

Although it is not yet clear as to whether such a general tendency will be borne out in the case of Justice Barrett, a recent ruling in which the Justice participated does offer a snapshot of the more immediate implications of the Justice’s appointment. Andrew Cuomo, the Governor of New York, had imposed capacity caps on places of worship, in an effort to combat the spread of COVID-19. However, minutes before midnight on Wednesday the 25th of November 2020, the day before Thanksgiving celebrations began, the Supreme Court suspended the caps in a 5-4 decision, upholding a challenge by a Roman Catholic Diocese and two Orthodox Jewish synagogues.[38]

Commenting on the ruling, Governor Cuomo stated: “You have a different court… and I think that was the statement the court was making.”[39] During the summer of 2020, the Court had narrowly rejected similar challenges by churches in Nevada and California, on account of Justice Ginsburg and Chief Justice Roberts opposing such a ruling.[40] Now, with the presence of Justice Barrett on the Court, Chief Justice Roberts appears to have lost some of his previous influence upon the Court’s rulings as a swing voter. That Justice Barrett joined the majority, in this case, is in itself unsurprising, as the Justice’s judicial philosophy is close to that of her conservative colleagues. The real significance of this case lies in its plain evidencing of the new arithmetic of the Supreme Court, which invalidates the previously decisive swing vote of Chief Justice Roberts. The most instructive early indications of what kind of Justice Amy Coney Barrett will be shall be seen in whether the Justice ever diverges from her conservative colleagues in a similar manner to Justice Gorsuch of late, and also in how the tone of her first publicly available opinions compare.

Whilst it continues to appear unlikely that landmark decisions such as Roe v Wade will be overturned in the foreseeable future, it does seem that in the absence of any adjustments to the Supreme Court, its new, reliable conservative majority will deliver significant conservative judicial victories through mounting incremental rulings. Recent political events have underlined the folly of making concrete political predictions. New vacancies or a change in the political possession of the Senate could entail that an extended conservative dominance in the Supreme Court does not come to bear. In the meantime, however, the appointment of Justice Barrett does appear to have delivered a reliable conservative majority, which will remain controversial even if the pre-existing balance is eventually restored.

Written by Alessandro Rossi.