Last week, Justice Amy Coney Barrett was confirmed to the Supreme Court in one of the most divided confirmations in history. The confirmation comes just 40 days after Justice Ruth Bader Ginsburg’s passing.
Before her confirmation to the Supreme Court, Barrett was nominated by President Donald J. Trump to the U.S. Court of Appeals for the Seventh Circuit where she served for three years.
She was also a professor of law at her alma mater, Notre Dame Law School, since 2002. There, she taught civil procedure, constitutional law, constitutional theory and statutory interpretation. At law school, she was the executive editor of the Notre Dame Law Review.
Her history also includes clerking for late Associate Justice Antonin Scalia and is often referred to as his protege.
Barrett is a self-proclaimed “originalist.” During her hearings, she said, “So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
Her appointment represents a conservative tilt in the court for years to come if more justices aren’t added.
In an analysis of Barrett’s ideology, an article from The Washington Post found that her ideology closely aligns with Scalia’s. "She would be the second most conservative member of the Court, behind only Justice Clarence Thomas,” according to the article.
A Right-leaning court has numerous policy implications for abortion, policing, discrimination, LGBTQ+ rights, climate, health care and immigration, especially with a justice like Barrett on the court.
A The Guardian article analyzing Barrett’s judicial history found that she often votes against workers, immigrants and the poor. The Black Lives Matter movement put a spotlight on policing across the country and Barrett’s history shows that she is likely to vote against measures that might help remedy racial injustice.
The article cites the cases of Torry v. City of Chicago, Biegert v. Molitor, United States v. Wilson and Sims v. Hyatte. In the case of Torry v. City of Chicago, Barrett said the “officers were reasonable in stopping and harassing a group of Black men even though there was absolutely no evidence that they had committed a crime,” according to the article.
But, during the confirmation hearings, Barrett acknowledged the fact that racism is an issue in America.
Many also believe that because Barrett is a conservative Catholic, she will rule against abortion and LGBTQ+ rights. Barrett looked at three laws restricting abortions in Indiana and, “in all three cases, she expressed misgivings about earlier rulings from appeals judges that had struck down the laws,” according to The New York Times article.
The Associated Press compiled a list of quotes from Barrett on topics ranging from abortion to precedent. In 2016, Barrett discussed what a conservative Supreme Court might look like in terms of abortion. She said, “I don’t think abortion or the right to abortion would change. I think some of the restrictions would change ... The question is how much freedom the court is willing to let states have in regulating abortion."
On same-sex marriage, Barrett “signaled skepticism about it” and that Justice Samuel Alito and Thomas also suggested revisiting the decision, according to a The New York Times article.
A South Bend Tribune article examining rulings and opinions by Barrett said that in her past, she defended “the Trump administration's rule denying immigrants permanent residence if they become regular users of public assistance,” and blocked “the U.S. Equal Employment Opportunity Commission’s effort to stop an employer from transferring Chicago-area employees based on their race or ethnicity.”
Barrett’s confirmation is also one of the most contested topics in current American politics. The vote was split 52-48 with all the Democrats in the Senate opposing her confirmation. The accelerated proceedings call into question what it means for future confirmations as well as how truly reflective it is of the Democratic process.
While the Constitution doesn’t provide any guidelines about the timeline of judicial confirmations, it only took approximately 30 days from nomination to confirmation for Barrett to be inducted into the court, which is shorter than average. The actual hearings only took four days.
The Congressional Research Service found that in an examination of Supreme Court Justice confirmations from 1975 to present day (excluding Barrett), on average, it takes approximately 70.8 days to confirm a justice to the court, from the nomination to the final vote.
The shortest confirmation during the time period examined was Justice John Paul Stevens with 19 days. The longest confirmation was Justice Robert Bork with 108 days. For the most recent justice confirmed to the court, Brett Kavanaugh, it took 88 days.
A controversial aspect of Barrett’s confirmation was the fact that it occurred during an election year. Back in 2016, the Senate blocked President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court to replace Scalia.
Senate Majority Leader Mitch McConnell said in reference to his nomination that, “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
Many opponents of Barrett’s confirmation said that the results of the 2020 election should have determined who would nominate Ginsburg’s replacement, invoking the words of McConnell. Barrett’s nomination came 39 days before the election, while Garland’s nomination was 237 days before the 2016 election.
This controversy is further fueled by the fact that Ginsburg said in a statement to her granddaughter before her death, “My most fervent wish is that I will not be replaced until a new president is installed.”
The appointment also calls into question whether a rushed nomination truly fulfills senatorial duties.
Confirming a Supreme Court justice is no small matter. These justices serve for life and have the potential to dismantle and set precedent that can impact millions of lives for many years to come.
Supreme Court nominations involve an intense vetting process complete with questioning from senators, FBI background checks and careful evaluation of a nominees record, philosophy, ideology and representation of certain groups.
The founders understood the weight of these appointments and the need for a thorough vetting process. That’s why they said the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”
Without this regulation, the president would be able to nominate whoever they wanted to the court unchecked, thus dismantling the system of checks and balances and eliminating a core part of the American government.
Proceedings as important as these are require the full attention of the Senate. During an election year, this isn’t possible. Senators might have to split their attention between re-election campaigns and the hearings, thus depriving the proceedings of the attention they deserve.
The rushed confirmation makes people wonder whether the Senate fulfilled its moral and senatorial obligations or if it skirted an important check of the American government.
Barrett’s appointment also means a current conservative majority in the Senate, the Supreme Court and the executive office. The election could also alter this picture. There are 35 senate seats up for election and of course the presidential election is one of the closest elections in history.
If the Senate, the Supreme Court and the presidency remain conservative, it means that conservative-leaning legislation can easily be passed and liberal-leaning policies, such as the Affordable Care Act, could be snuffed out.