When President Donald Trump was down to the wire in naming a replacement for retiring Supreme Court Justice Anthony Kennedy, one of the strikes against federal appeals court Judge Amy Coney Barrett was her scanty judicial record.
Conservatives had learned a painful lesson with previous picks — Justices Sandra Day O’Connor and David Souter — who turned out to be more moderate than advertised. They had internalized the experience: No more stealth nominees. Candidates needed to have a lengthy enough judicial paper trail to be confident of how they would perform on the high court.
So Barrett, named to the U.S. Court of Appeals for the 7th Circuit just eight months earlier, lost out to Brett Kavanaugh — even though an examination of her academic writings strongly suggested that, at least on the issue most important to social conservatives, she would be solidly opposed to abortion rights and inclined, even eager, to reverse Roe v. Wade. As I wrote at the time, “while Barrett has the shortest judicial paper trail of the likely nominees, her academic writings are the equivalent of a flashing neon sign: I’ll do it.”
More than two years later, Barrett has amassed a judicial track record — nearly 100 written opinions, and many more votes on cases before her — to support that assessment. In her still relatively short time on the bench, Barrett has considered two abortion cases and ruled against abortion rights in both.
In one, the full appeals court declined to review a panel decision that blocked from taking effect an Indiana parental-consent law for minors seeking abortions. The law on this has been fairly clear, for decades: It is constitutional for states to require that minors seeking abortions obtain parental consent. However, such laws must provide what is known as a judicial bypass, allowing the minor to demonstrate that she is mature enough to make the decision on her own or that an abortion would be in her best interest.
Notwithstanding this settled law, Indiana enacted a parental-consent law that mandated that the parent be informed of the planned abortion unless the judge further decided that it would not be in the minor’s “best interests.” A district judge blocked the law, and a three-judge appeals court panel agreed. The panel, splitting two to one, noted the “serious risk that prior notice, instead of giving parents an opportunity to offer wise counsel, will actually give parents an opportunity to exercise a practical veto, preventing the pregnant minor from actually exercising the constitutional right the juvenile court has allowed her to exercise.”
The full appeals court, dividing six to five, let that decision stand. Barrett and two other Trump nominees joined the dissent, which stated the issue as a matter of federalism: “Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”
The second case involved an even more extreme Indiana law, signed by Vice President Mike Pence when he was governor: It prohibited abortions performed for reasons related to sex, race or disability. Specifically, a woman who discovered that her fetus had Down syndrome would be barred from terminating the pregnancy.
An appeals court panel composed of three Republican appointees agreed with the lower court that the law was flatly unconstitutional. “The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason,” the court said.
It rejected Indiana’s argument that the right to abortion protected under Roe included only the decision whether or not to bear a child, not whether to continue a particular pregnancy. “Nothing in Roe . . . or any other case from the Supreme Court can be read to limit a woman’s right in this way,” the court said.
Indiana didn’t ask the appeals court to reconsider that part of the ruling, just a different aspect of the law involving the disposal of fetal remains. That didn’t stop Barrett from joining a dissent that labeled the law a “eugenics statute.” The opinion, issued just before Kennedy announced his retirement, argued that “none of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.” Talk about judicial activism — the question wasn’t even before the court.
Of course, there is much more to constitutional interpretation and judicial philosophy than abortion. To take one other hot-button example, in 2018, gun rights groups were concerned about Barrett’s blank slate on the issue. Now they have before them a 2019 case involving a Wisconsin man, convicted of felony mail fraud, who claimed that federal and state laws prohibiting felons from possessing firearms went too far in his case, without any indication that he posed a danger. Two Republican appointees upheld the laws. Barrett dissented, saying that denying arms to all nonviolent felons treats the Second Amendment as a “second-class right.”
Barrett dissented in a case in which the majority blocked the Trump administration’s “public charge” rule, which excludes the entry of legal immigrants who might rely on federal benefits. She joined a ruling that job applicants cannot use age-discrimination law to sue over hiring practices that have a discriminatory impact on older workers.
On the other hand, she found that a male butcher who was subjected to harassment and unwanted touching by male co-workers could sue under federal anti-discrimination law. “The shop was a mixed-sex workplace, and only men were groped and taunted,” Barrett wrote. “Because men were treated differently from women at [the store], a reasonable jury could conclude that [the plaintiff] was tormented because of his sex.”
There is much more to plumb in Barrett’s writings, as Trump weighs his selection. But a quick review suggests that conservatives should be assuaged, and liberals alarmed, by the Barrett record in her first years as a judge.
Ruth Marcus’ email address is email@example.com.