Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme Court
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Judge Amy Coney Barrett: Her Jurisprudence
and Potential Impact on the Supreme Court
October 6, 2020
Congressional Research Service
https://crsreports.congress.gov
R46562
SUMMARY
Judge Amy Coney Barrett: Her Jurisprudence
and Potential Impact on the Supreme Court
On September 26, 2020, President Donald J. Trump announced the nomination of Judge Amy
Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit to the Supreme Court of the
United States to fill the vacancy left by the death of Justice Ruth Bader Ginsburg on September
18, 2020. Judge Barrett has been a judge on the Seventh Circuit since November 2017, having
been nominated by President Trump and confirmed by the Senate earlier that year. The nominee
earned her law degree from Notre Dame Law School in 1997, and clerked for Judge Laurence H.
Silberman of the U.S. Court of Appeals for the D.C. Circuit and Supreme Court Justice Antonin
Scalia. From 2002 until her appointment to the Seventh Circuit in 2017, Judge Barrett was a law
professor at Notre Dame Law School, and she remains part of the law school faculty. Her
scholarship has focused on topics such as theories of constitutional interpretation, stare decisis,
and statutory interpretation. If confirmed, Judge Barrett would be the fifth woman to serve as a
Supreme Court Justice.
R46562
October 6, 2020
Valerie C. Brannon,
Coordinator
Legislative Attorney
Michael John Garcia,
Coordinator
Section Research Manager
Caitlain Devereaux Lewis,
Coordinator
Section Research Manager
During Judge Barrett’s September 26 Supreme Court nomination ceremony, she paid tribute to
both Justice Ginsburg and her former mentor, Justice Scalia. “Should I be confirmed,” Judge
Barrett said, “I will be mindful of who came before me,” stating that Justice Ginsburg’s trailblazing career in the law “has
won the admiration of women around the country, and indeed all over the world.” In describing the “incalculable influence”
that Justice Scalia, in particular, had on her life, Judge Barrett remarked: “His judicial philosophy is mine too: A judge must
apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might
hold.” In her academic writings, the nominee has frequently explored aspects of that judicial philosophy, including the use of
an originalist approach to constitutional interpretation tempered by pragmatic considerations and a textualist approach to
statutory interpretation.
Notwithstanding the difficulty of predicting how a nominee may vote in a particular case, a judge’s prior judicial decisions,
writings, and statements may provide insight into her approach to resolving legal questions. Such assessments, however, may
prove particularly challenging with Judge Barrett: because she became a judge in 2017, she has written fewer judicial
opinions compared to recent nominees who served on the bench for more time. And although her scholarly publications
expound theories of constitutional and statutory interpretation, her engagement with these topics from an academic standpoint
may not necessarily predict whether she would adopt any particular methodology as a Supreme Court Justice.
This report provides an overview of Judge Barrett’s jurisprudence and scholarship and discusses how the Supreme Court
might be affected by her confirmation. It first explores the nominee’s views on three cross-cutting issues—the role of the
judiciary, constitutional construction, and statutory interpretation. The report then addresses the nominee’s jurisprudence in
six areas of law where the Supreme Court has been closely divided or where the nominee has issued significant opinions,
particularly in cases where she disagreed with other jurists. These areas of the law were identified primarily by reviewing
Judge Barrett’s written judicial opinions and academic scholarship. The report concludes with a number of tables that catalog
and briefly describe each of the roughly 90 majority, concurring, and dissenting opinions authored by Judge Barrett during
her 35-month tenure on the federal bench.
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Judge Barrett: Her Jurisprudence & Potential Impact on the Supreme Court
Contents
Introduction ..................................................................................................................................... 1
Predicting a Nominee’s Future Court Decisions ............................................................................. 5
The Role of the Judiciary .............................................................................................................. 10
Stare Decisis ............................................................................................................................. 11
General Approach ............................................................................................................. 12
Constitutional Versus Statutory Cases .............................................................................. 14
Specific Precedents ........................................................................................................... 15
Constitutional Structure .......................................................................................................... 17
Separation of Powers ........................................................................................................ 17
Federalism......................................................................................................................... 18
Federal Court System........................................................................................................ 19
Modes of Constitutional Interpretation ......................................................................................... 20
Approach to Statutory Interpretation ............................................................................................. 22
Abortion......................................................................................................................................... 28
Civil Procedure .............................................................................................................................. 32
Civil Rights.................................................................................................................................... 35
Criminal Law and Procedure ......................................................................................................... 38
Fourth Amendment.................................................................................................................. 39
Sixth Amendment .................................................................................................................... 40
Other Criminal Matters ........................................................................................................... 41
Immigration ................................................................................................................................... 43
Second Amendment ....................................................................................................................... 47
Tables and Data: The Seventh Circuit ........................................................................................... 51
Methodology ........................................................................................................................... 54
Tables and Data: Judge Barrett’s Judicial Opinions ...................................................................... 59
Methodology ........................................................................................................................... 59
Tables
Table 1. Reported Opinions Issued by Active Status Judges on the Seventh Circuit
(November 2, 2017, to September 29, 2020) ............................................................................. 55
Table 2. Opinions Issued by Active-Status Judges on the Seventh Circuit That Drew
Dissents and Concurrences in Reported Cases (November 2, 2017, to September 29,
2020) .......................................................................................................................................... 57
Table 3. Opinions Authored by Judge Barrett for a Unanimous Panel .......................................... 61
Table 4. Controlling Opinions Authored by Judge Barrett for Which Another Judge Wrote
a Concurrence or Dissent ........................................................................................................... 76
Table 5. Concurring and Dissenting Opinions Authored by Judge Barrett ................................... 79
Contacts
Author Information........................................................................................................................ 85
Congressional Research Service
Judge Barrett: Her Jurisprudence & Potential Impact on the Supreme Court
Congressional Research Service
Judge Barrett: Her Jurisprudence & Potential Impact on the Supreme Court
Introduction
On September 26, 2020, President Donald J. Trump announced the nomination of Judge Amy
Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) to fill the
vacancy on the Supreme Court of the United States left by the death of Justice Ruth Bader
Ginsburg on September 18, 2020.1 Judge Barrett has been a judge on the Seventh Circuit since
November 2017, having been nominated by President Trump and confirmed by the Senate earlier
that year.2 Judge Barrett earned her law degree from Notre Dame Law School in 1997.3 After
graduating from law school, Judge Barrett clerked for Judge Laurence H. Silberman of the U.S.
Court of Appeals for the D.C. Circuit4 (D.C. Circuit) and Supreme Court Justice Antonin Scalia.5
After her clerkships, she worked in private practice for about two years before entering
academia,6 initially teaching at the George Washington University Law School.7 From 2002 to
2017, Judge Barrett was a law professor at Notre Dame Law School, and she remains on the
school’s faculty.8 If confirmed, Judge Barrett would be the fifth woman to serve as a Supreme
Court Justice.9 If neither confirmed nor rejected, Judge Barrett’s nomination would likely remain
effective until the current term of Congress ends (or if the Senate recesses for more than 30
days).10
In her remarks during the September 26 Supreme Court nomination ceremony, Judge Barrett paid
tribute to both Justice Ginsburg and her former mentor, Justice Scalia.11 “Should I be confirmed,”
Judge Barrett said, “I will be mindful of who came before me,” stating that Justice Ginsburg’s
1 Press Release, President Donald J. Trump Announces Intent to Nominate Judge Amy Coney Barrett to the Supreme
Court of the United States (Sept. 26, 2020), https://www.whitehouse.gov/presidential-actions/president-donald-j-trumpannounces-intent-nominate-judge-amy-coney-barrett-supreme-court-united-states. Judge Barrett’s nomination was
formally received by the Senate three days later. See PN2252, Amy Coney Barrett—Supreme Court of the United
States, 116th Cong. (received Sept. 29, 2020), https://www.congress.gov/nomination/116th-congress/2252.
2 Barrett, Amy Coney, FED. JUD. CTR., https://www.fjc.gov/history/judges/barrett-amy-coney (last visited Sept. 30,
2020) [hereinafter Judge Barrett Biography].
3 Id.
4 Id.; see Laurence H. Silberman, U.S. CT. OF APPEALS D.C. CIR., https://www.cadc.uscourts.gov/internet/home.nsf/
Content/VL+-+Judges+-+LHS (last visited on Sept. 29, 2020).
5 Judge Barrett Biography, supra note 2; see also CRS Report R44419, Justice Antonin Scalia: His Jurisprudence and
His Impact on the Court.
6 Judge Barrett Biography, supra note 2.
7 Id.
8 Hon. Amy Coney Barrett, UNIV. OF NOTRE DAME L. SCH., https://law.nd.edu/directory/amy-barrett (last visited Oct. 5,
2020). To distinguish the nominee’s time on the Seventh Circuit from her prior academic career, this report often refers
to the nominee as “Judge Barrett” when discussing the nominee’s views after she was appointed to the bench, and
“then-Professor Barrett” when discussing her writings and speeches before she became a judge.
9 See Levels of Office: U.S. Supreme Court, CTR. FOR AM. WOMEN & POL., https://cawp.rutgers.edu/facts/
levels_of_office/us_supreme_court (last visited Sept. 30, 2020).
10 SENATE R. XXXI, ¶ 6. (“Nominations neither confirmed nor rejected during the session at which they are made shall
not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate
shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time
of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be
considered unless they shall again be made to the Senate by the President.”); see also CRS Report RL31980, Senate
Consideration of Presidential Nominations: Committee and Floor Procedure, by Elizabeth Rybicki, at 14.
11 Judge Amy Coney Barrett, Remarks by President Trump Announcing His Nominee for Associate Justice of the
Supreme Court of the United States (Sept. 26, 2020), https://www.whitehouse.gov/briefings-statements/remarkspresident-trump-announcing-nominee-associate-justice-supreme-court-united-states/ [hereinafter Remarks].
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Judge Barrett: Her Jurisprudence & Potential Impact on the Supreme Court
trailblazing career “has won the admiration of women around the country, and indeed all over the
world.”12 In describing the “incalculable influence” that Justice Scalia, in particular, had on her
life, the nominee remarked: “His judicial philosophy is mine too: A judge must apply the law as
written. Judges are not policymakers, and they must be resolute in setting aside any policy views
they might hold.”13
Judge Barrett’s identification with the judicial philosophy of Justice Scalia might suggest some
contrast with the approach taken by Justice Ginsburg. For example, in one 2015 appearance made
jointly with Justice Scalia, Justice Ginsburg suggested that she ascribes to the idea of a “living”
Constitution, in which the meaning of a provision may evolve over time,14 in contrast to Justice
Scalia’s conception of an “enduring” Constitution that is more firmly rooted in a provision’s
meaning at the time of ratification.15 As Justice Ginsburg and Justice Scalia were frequently
(though not uniformly) on opposing sides of closely divided cases,16 Judge Barrett’s identification
with Justice Scalia’s judicial philosophy may provide some insight into how the nominee may
affect the Court’s approach to certain matters. As discussed later in this report, however, any such
predictive assessments must be made with caution.17
This report provides an overview of Judge Barrett’s legal philosophy, as revealed by her time on
the federal bench and her academic scholarship,18 and discusses how her confirmation might
affect the Supreme Court. In attempting to ascertain how Judge Barrett might influence the High
Court, however, it is important to note that it is difficult to predict accurately an individual’s
likely contributions to the Court based on her prior experience. The first section of this report,
titled Predicting a Nominee’s Future Court Decisions, provides a broader context and framework
for evaluating how determinative a nominee’s prior record may be in predicting her future votes
12 Id.
13 Id.
14
Nina Totenberg, Justices Ginsburg and Scalia: A Perfect Match Except for Their Views on the Law, NPR (Feb. 13,
2015, 4:21 PM), https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-beingtipsy-during-state-of-the-union-nap.
15 Julyssa Lopez, Justices Ginsburg and Scalia: An Unlikely Bond, GW TODAY (Feb 13, 2015),
https://gwtoday.gwu.edu/justices-ginsburg-and-scalia-unlikely-bond-0.
16 In the Roberts Court era, for example, Justices Scalia and Ginsburg were commonly on opposing sides in 5-4 Court
opinions on both constitutional and statutory matters. See generally CRS Report R45256, Justice Anthony Kennedy:
His Jurisprudence and the Future of the Court, by Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon, app.
[hereinafter CRS Kennedy Report] (identifying cases during the Roberts Court era where Justice Anthony Kennedy was
a deciding vote in closely divided Supreme Court cases and the majority and dissenting Justices in each of these cases);
CRS Report R46546, Justice Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data, by Michael
John Garcia and Kate R. Bowers [hereinafter CRS Ginsburg Report] (listing cases in which Justice Ginsburg was a
deciding vote on the Court from the October 2005 Term until her passing, along with the composition of Justices
comprising the majority and dissent).
17 See discussion infra in Predicting a Nominee’s Future Court Decisions.
18
See CRS Legal Sidebar LSB10539, Judge Amy Coney Barrett: Selected Primary Material, by Julia Taylor
[hereinafter CRS Barrett Sidebar]. While this report discusses many of Judge Barrett’s nonjudicial writings, it does not
address anything written by the nominee in a representative capacity for another party, such as work prepared for a
client while she was in private practice, because those materials may provide limited insight into the advocate’s
personal views on the law. See Confirmation Hearing on Federal Appointments: Hearing Before the S. Comm. on the
Judiciary Part 1, 108th Cong. 419 (2003) (statement of John G. Roberts Jr.) (“I do not believe that it is proper to infer a
lawyer’s personal views from the positions that lawyer may advocate on behalf of a client in litigation.”); but see
William G. Ross, The Questioning of Lower Federal Court Nominees During the Senate Confirmation Process, 10
WM. & MARY BILL RTS. J. 119, 161 (2001) (suggesting that, “[a]lthough it is unlikely that judges would permit
positions that they advocated as attorneys to directly bias their judicial decisions,” and “most lawyers advocate
positions about which they hold indifferent or conflicting opinions,” it “often may” be possible to “discern a nominee’s
political predilections from the types of clients and cases that a nominee has had as an attorney”).
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on the Supreme Court.19 The next sections of the report explore Judge Barrett’s views on three
cross-cutting issues—the role of the judiciary,20 constitutional construction,21 and statutory
interpretation.22 The report then addresses the nominee’s jurisprudence in six areas of law,
arranged in alphabetical order from abortion23 to the Second Amendment.24 These selected issues
are areas where either the Supreme Court has been closely divided (particularly on a matter where
Justice Ginsburg provided a fifth or deciding vote25), or where the nominee has disagreed with a
colleague on a Seventh Circuit panel or with a position taken by a different circuit court.
Accordingly, when discussing Judge Barrett’s cases and votes, the report highlights cases in
which the sitting three-judge panel or en banc court was divided and the nominee authored a
separate opinion (i.e., dissent or concurrence).26 The report concludes with a number of tables that
catalog and briefly describe judicial opinions authored by Judge Barrett during her 35-month
tenure on the federal bench.27
Other CRS products discuss various issues related to the Supreme Court vacancy. For an
overview of Justice Ginsburg’s legacy, a compilation of cases in which she provided a fifth or
otherwise deciding vote, and a study of procedural issues related to the High Court proceeding
with eight Justices, see CRS Legal Sidebar LSB10537, The Death of Justice Ruth Bader
Ginsburg: Initial Considerations for Congress;28 CRS Report R46546, Justice Ruth Bader
Ginsburg as a Deciding Vote on the Supreme Court: Select Data;29 and CRS Report R46550, The
Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court.30 For a
shorter overview of Judge Barrett’s jurisprudence, see CRS Legal Sidebar LSB10540, President
Trump Nominates Judge Amy Coney Barrett: Initial Observations.31 For a list of primary
resources on Judge Barrett’s biography, judicial and nonjudicial writings, prior nomination
19 See discussion infra in Predicting a Nominee’s Future Court Decisions.
20 See discussion infra in The Role of the Judiciary.
21 See discussion infra in Modes of Constitutional Interpretation.
22 See discussion infra in Approach to Statutory Interpretation.
23 See discussion infra in Abortion.
24 See discussion infra in Second Amendment.
25 These areas are identified in CRS Ginsburg Report, supra note 16.
26 See Aaron L. Nielson, D.C. Circuit Review—Reviewed: Brooding Spirits, YALE J. ON REG.: NOTICE & COMMENT (Jan.
30, 2016), http://yalejreg.com/nc/d-c-circuit-review-reviewed-brooding-spirits-by-aaron-nielson (“[I]f you really want
to understand an appellate judge, look to his or her separate writings. Of course, most separate opinions don’t say much
about the judge’s philosophy or personality; sometimes a judge thinks the panel just got it wrong. Even so, despite the
fact that not all separate writings are windows to the soul, it is still true that reading opinions that judges don’t have to
write can be telling.”); see also Jonathan H. Adler, What Happened When Merrick Garland Wrote for Himself,
VOLOKH CONSPIRACY (Mar. 21, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/21/
what-happened-when-merrick-garland-wrote-for-himself (“The best way to get a handle on a circuit judge’s judicial
philosophy is to look at the judge’s concurrences and dissents.”).
27 See infra Tables & Data: Judge Barrett’s Judicial Opinions.
28 CRS Legal Sidebar LSB10537, The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress, by
Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis.
29 CRS Ginsburg Report, supra note 26.
30 CRS Report R46550, The Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court, by
Caitlain Devereaux Lewis.
31 CRS Legal Sidebar LSB10540, President Trump Nominates Judge Amy Coney Barrett: Initial Observations, by
Victoria L. Killion.
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materials, and more, see CRS Legal Sidebar LSB10539, Judge Amy Coney Barrett: Selected
Primary Material.32
In addition, CRS has several products that focus on the Supreme Court nomination and
confirmation process. Article II of the U.S. Constitution gives the President the authority to
appoint judges to the Supreme Court with the Senate’s advice and consent.33 For a discussion of
the President’s selection of Supreme Court Justices, see CRS Report R44235, Supreme Court
Appointment Process: President’s Selection of a Nominee.34 For a detailed examination of the
Senate’s role in the confirmation process, see CRS Report R44236, Supreme Court Appointment
Process: Consideration by the Senate Judiciary Committee;35 CRS Report R45300, Questioning
Judicial Nominees: Legal Limitations and Practice;36 CRS Report RL31980, Senate
Consideration of Presidential Nominations: Committee and Floor Procedure; and CRS Report
R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote.37
The Supreme Court’s October 2020 Term began on October 5 with only eight Justices on the
bench.38 However, if Judge Barrett is confirmed and appointed to the Supreme Court, the Court’s
past practice indicates she may immediately begin participating in the Court’s work.39
32 CRS Barrett Sidebar, supra note 18.
33 U.S. CONST. art. II, § 2, cl. 2.
34 CRS Report R44235, Supreme Court Appointment Process: President’s Selection of a Nominee, by Barry J.
McMillion; id. at 8 (“Virtually every President is presumed to take into account a wide range of political considerations
when faced with the responsibility of filling a Supreme Court vacancy. For instance, most Presidents, it is assumed,
will be inclined to select a nominee whose political or ideological views appear compatible with their own.”).
35 CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by
Barry J. McMillion; id. at 2 (“While the U.S. Constitution assigns explicit roles in the Supreme Court appointment
process only to the President and the Senate, the Senate Judiciary Committee, throughout much of the nation’s history,
has also played an important, intermediary role . . . . Since the late 1960s, the Judiciary Committee’s consideration of a
Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage,
followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the
full Senate.”).
36 CRS Report R45300, Questioning Judicial Nominees: Legal Limitations and Practice, by Kevin M. Lewis and
Valerie C. Brannon [hereinafter CRS Judicial Nominees Report].
37 Rybicki, supra note 10; CRS Report R44234, Supreme Court Appointment Process: Senate Debate and
Confirmation Vote, by Barry J. McMillion.
38 Amy Howe, Court Releases October Calendar, SCOTUSBLOG (July 13, 2020, 4:22 PM),
https://www.scotusblog.com/2020/07/court-releases-october-calendar-3. The oral arguments the Court has scheduled
for October 2020 were originally scheduled for March or April 2020, but were postponed due to the COVID-19
pandemic. Id. The Court will hear oral arguments by telephone conference because of the ongoing COVID-19
pandemic. Press Release, Sup. Ct. of the U.S., Press Release Regarding October Oral Argument Session (Sept. 16,
2020), https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-16-20 (“The Court will hear all oral
arguments scheduled for the October session by telephone conference, following the same format used for the May
teleconference arguments.”).
39 To cite recent examples, the Senate confirmed Justice Gorsuch on April 7, 2017, and he started hearing cases on
April 17, 2017, with Perry v. Merit Systems Protection Board. See Roll Call Vote 115th Congress - 1st Session, U.S.
SENATE (Apr. 7, 2017), https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm? congress=115
&session=1&vote=00111; Oral Argument, Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017) (No. 16-399),
https://www.supremecourt.gov/oral_arguments/audio/2016/16-399. Similarly, the Senate confirmed Justice Kavanaugh
on October 6, 2018, several days after the October 2018 Term commenced, and he heard his first case as an Associate
Justice, Stokeling v. United States, on October 9, 2018. See Roll Call Vote 115th Congress - 2nd Session, U.S. SENATE
(Oct. 6, 2018), https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?
congress=115&session=2&vote=00223; Oral Argument, Stokeling v. United States 139 S. Ct. 544 (2018) (No. 175554), https://www.supremecourt.gov/oral_arguments/audio/2018/17-5554.
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Predicting a Nominee’s Future Court Decisions
At least as a historical matter, attempting to predict how Supreme Court nominees might
approach their work on the High Court is a task fraught with uncertainty.40 For example, Justice
Felix Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment
to the Court in 1939,41 disappointed42 some early supporters by subsequently becoming a voice
for judicial restraint and caution when the Court reviewed laws that restricted civil liberties
during World War II43 and the early Cold War era.44 Similarly, President Richard Nixon originally
considered Justice Harry Blackmun, who served on the U.S. Court of Appeals for the Eighth
Circuit for just over a decade prior to his appointment to the Court in 1970,45 to be a “strict
constructionist” in that he viewed the judge’s role as interpreting the law, rather than making new
law.46 In the years that followed, however, Justice Blackmun authored the majority opinion in Roe
v. Wade, which recognized a constitutional right to terminate a pregnancy.47 And he was generally
considered one of the more liberal voices on the Court when he retired in 1994.48 Justice Anthony
Kennedy, appointed by President Ronald Reagan, was often characterized as the Court’s “swing
40 Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting
Alignments, 1838–2009, 76 MO. L. REV. 999, 1040 (2011) (“[U]ncertainty is empirically well-founded. It is borne out
by Justices’ overall voting records since at least 1838. The president’s odds of appointing a Justice who sides with
appointees of his party have been no better than a coin flip.”); id. at 1021 (listing Justices William J. Brennan Jr., Tom
C. Clark, Felix Frankfurter, Oliver Wendell Holmes Jr., John McLean, James Clark McReynolds, Stanley Forman
Reed, David Souter, John Paul Stevens, Earl Warren, and James Moore Wayne as examples of jurists who
“disappointed” the expectations of the President who appointed them to the Court); see also The Judicial Nomination
and Confirmation Process: Hearings Before the Subcomm. on Admin. Oversight & the Courts, S. Comm. on the
Judiciary, 107th Cong. 195 (2001) (statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, The
Catholic University of America) (similar).
41 See Joseph L. Rauh Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213,
220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he
would become the dominant spirit and intellectual leader of the new liberal Court. After all, he had been, in the words
of Brandeis, ‘the most useful lawyer in the United States’: defender of Tom Mooney, the alien victims of the Palmer
Red Raids, the striking miners of Bisbee, Arizona, Sacco and Vanzetti, and too many others to mention.”); JAMES F.
SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13–16, 46–
47 (1989) (noting fears in some political circles that Justice Frankfurter was a Communist or Communist sympathizer,
“inspir[ing] American conservatives to label Frankfurter a dangerous radical”); see generally NOAH FELDMAN,
SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME COURT JUSTICES 14, 21–27 (2010).
42 See, e.g., Rauh, supra note 41, at 220 (“But . . . a deep belief in judicial restraint in all matters overtook even [Justice
Frankfurter’s] lifelong dedication to civil liberties.”).
43 See, e.g., Korematsu v. United States, 323 U.S. 214, 225 (1944) (Frankfurter, J., concurring) (contending that the
validity of the Japanese-American civilian exclusion order was the “business” of Congress and the Executive, not the
Court); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting) (arguing for the
constitutionality of a World War II-era law requiring students to salute the flag).
44 See, e.g., Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the conviction of
three defendants under the Smith Act for conspiracy to organize the Communist Party as a group advocating the
overthrow of the U.S. government by force).
45 See Blackmun, Harry Andrew, FED. JUD. CTR., https://www.fjc.gov/history/judges/blackmun-harry-andrew (last
visited Sept. 30, 2020).
46 See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979) (“Nixon found
Blackmun’s moderate conservatism perfect . . . . [Blackmun] had a . . . predictable, solid body of opinions that
demonstrated a levelheaded, strict-constructionist philosophy . . . . Blackmun was a decent man, consistent, wedded to
routine, unlikely to venture far.”).
47 410 U.S. 113 (1973).
48 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (declaring that, by 1994, “Harry Blackmun was,
by wide consensus, the most liberal member of the Supreme Court”).
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vote” in his later years on the bench,49 frequently aligning with the more conservative wing of the
Court, but sometimes joining the more liberal wing in closely divided cases, including decisions
establishing a constitutional right to federal50 and state51 recognition of same-sex marriage and
barring the use of capital punishment against juvenile offenders.52
Even when a Justice with a lengthy judicial career prior to nomination adheres to his stated
judicial philosophy, it can sometimes lead to results that may not be in line with the Justice’s
perceived ideology. For example, another of President Trump’s nominees to the High Court,
Justice Neil Gorsuch, served on the U.S. Court of Appeals for the Tenth Circuit for just over a
decade prior to his nomination.53 Recently, commentators expressed “surprise” when Justice
Gorsuch—“widely considered one of the more conservative justices on the Supreme Court”—
wrote the majority opinion in Bostock v. Clayton County,54 which held that a federal law
prohibiting employment discrimination on the basis of sex also protected gay and transgender
employees.55 Some scholars, however, saw Justice Gorsuch’s opinion as driven by a textualist
approach to statutory interpretation56 and were “not surprised” by the outcome in the case.57
The nature of the lower federal courts’ dockets may also complicate efforts to predict a Supreme
Court nominee’s potential votes on the Supreme Court. Judges on the circuit courts of appeals are
bound by Supreme Court and circuit precedent58 and, therefore, are typically not in a position to
espouse freely their views on particular legal issues in the context of their judicial opinions.59
49 See generally CRS Kennedy Report, supra note 16.
50 United States v. Windsor, 570 U.S. 744 (2013).
51 Obergefell v. Hodges, 576 U.S. 644 (2015).
52 Roper v. Simmons, 543 U.S. 551 (2005).
53 CRS Report R44778, Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court
[hereinafter CRS Gorsuch Report].
54 See Harper Neidig & John Kruzel, Gorsuch Draws Surprise, Anger With LGBT Decision, THE HILL (June 15, 2020),
https://thehill.com/regulation/court-battles/502834-gorsuch-draws-surprise-anger-with-lgbt-decision; Robert Barnes,
Neil Gorsuch? The Surprise Behind the Supreme Court’s Surprising LGBTQ Decision, WASH. POST (June 16, 2020),
https://www.washingtonpost.com/politics/courts_law/neil-gorsuch-gay-transgender-rights-supremecourt/2020/06/16/112f903c-afe3-11ea-8f56-63f38c990077_story.html.
55 140 S. Ct. 1731, 1737 (2020); CRS Legal Sidebar LSB10496, Supreme Court Rules Title VII Bars Discrimination
Against Gay and Transgender Employees: Potential Implications, by Jared P. Cole.
56 See, e.g., Jonathan Skrmetti, The Triumph of Textualism: “Only the Written Word Is the Law”, SCOTUS BLOG (June
15, 2020, 9:04 PM), https://www.scotusblog.com/2020/06/symposium-the-triumph-of-textualism-only-the-writtenword-is-the-law. But see Josh Blackman, Justice Gorsuch’s Legal Philosophy Has a Precedent Problem, THE
ATLANTIC (July 24, 2020), https://www.theatlantic.com/ideas/archive/2020/07/justice-gorsuch-textualism/614461
(arguing that Justice Gorsuch’s “interpretation was shaded by” precedent that was “inconsistent with textualism”).
57 Ezra Ishmael Young, Bostock is a Textualist Triumph, JURIST (June 25, 2020, 3:53 PM), https://www.jurist.org/
commentary/2020/06/ezra-young-bostock-textualist-triumph.
58 See, e.g., Brewster v. Comm’r of Internal Revenue, 607 F.2d 1369, 1373–74 (D.C. Cir. 1979) (explaining that future
panels are bound to follow precedent set by previous panels until the en banc court or Supreme Court overrules that
precedent); see generally Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and
Consent, 67 OHIO ST. L.J. 783, 816 n.160 (2006) (“Vertical stare decisis binds hierarchically inferior federal appellate
judges to follow the Supreme Court’s on-point precedent. The relationship is vertical, or between inferior and
superior.”).
59 See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 367 (2009) (“Supreme Court decisions
bind the courts of appeals in a way in which they do not bind the Court itself, and therefore narrow considerably the
scope for those courts to exercise choice.”); see also DAVID ALISTAIR YALOF, PURSUIT OF JUSTICES: PRESIDENTIAL
POLITICS AND THE SELECTION OF SUPREME COURT NOMINEES 171 (1999) (claiming that the nature of a judge’s work on
a federal court of appeals allows “most circuit judges [to] chart a course of moderation” and “more often than not, a
circuit judge’s opinions tend to betray outsiders’ perceptions of that judge as a sharp ideological extremist”).
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Moreover, unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its
cases, the federal courts of appeals are required to hear many appeals as a matter of law.60 As a
result, the circuit courts, such as the Seventh Circuit upon which Judge Barrett sits, consider
“many routine cases in which the legal rules are uncontroverted.”61 Because lower court judges
are often bound by Supreme Court and circuit precedent, the majority62 of federal appellate
opinions are unanimous and the majority of cases considered by three-judge panels of federal
circuit courts are decided without dissent.63
Even in closely contested cases where concurring or dissenting opinions are filed, it may still be
difficult to determine a nominee’s preferences if she did not write an opinion in the case.64 The
act of joining an opinion authored by another judge does not necessarily reflect full agreement
with the underlying opinion.65 For example, in an effort to promote consensus on a court, some
judges will decline to dissent unless the underlying issue is particularly contentious.66 As one
commentator notes: “[T]he fact that a judge joins in a majority opinion may not be taken as
indicating complete agreement. Rather, silent acquiescence may be understood to mean
something more like ‘I accept the outcome in this case, and I accept that the reasoning in the
majority opinion reflects what a majority of my colleagues has agreed on.’”67
Using caution when interpreting a judge’s vote isolated from a written opinion may be
particularly important with votes on procedural matters. For example, a judge’s vote to grant an
60 Louis J. Sirico Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An Empirical
Analysis, 45 U. MIAMI L. REV. 1051, 1052 n.8 (1991); see generally POSNER, supra note 59, at 367 (“[M]ore of the
work of [the federal appellate] courts really is technical . . . . Most of the appeals they get can be decided
uncontroversially by the application of settled principles.”).
61 See Sirico & Drew, supra note 60, at 1052 n.8.
62 See Harry T. Edwards, Collegial Decision Making in the U.S. Courts of Appeals (N.Y.U. Sch. of Law, Pub. Law &
Legal Theory Research Paper Series, Working Paper No. 17-47, Nov. 2017).
63 See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of
circuit court panel dissents”); Neil M. Gorsuch, Law’s Irony, 37 HARV. J.L. & PUB. POL’Y 743, 753 (2014) (“Over
ninety percent of the decisions issued by [the Tenth Circuit] are unanimous; that’s pretty typical of the federal appellate
courts.”).
64 See Bert I. Huang & Tejas N. Narechania, Judicial Priorities, 163 U. PA. L. REV. 1719, 1754–55 (2015) (suggesting
that the “presence of a concurrence or dissent serves as a signal” that the case before the court is a “hard case”); see
generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV.
1371, 1412–15 (1995) (noting the motivations that prompt judges to write concurring or dissenting opinions); Diane P.
Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court,
100 CAL. L. REV. 1445, 1451–57 (2012) (describing the considerations that prompt judges to author separate opinions).
65 See Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y. TIMES (Oct. 24, 2015),
http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html (quoting Justice
Ginsburg as remarking that “an opinion of the court very often reflects views that are not 100 percent what the opinion
author would do, were she writing for herself”).
66 See Sanford Levinson, Trash Talk at the Supreme Court: Reflections on David Pozen’s Constitutional Good Faith,
129 HARV. L. REV. F. 166, 174 (2016) (declaring the assumption that “all adjudicators are splendidly isolated” is
“foolish,” and arguing that it may be “incumbent” upon judges to engage in “intellectual compromise[s]” “to serve the
public weal”). There is an academic debate as to whether the decision to join a concurrence or dissent signals complete
agreement with that opinion. Compare Robert H. Smith, Uncoupling the “Centrist Bloc”—An Empirical Analysis of
the Thesis of A Dominant, Moderate Bloc on the United States Supreme Court, 62 TENN. L. REV. 1, 10 n.36 (1994)
(arguing that “decisions to join or not join others’ opinions may in fact be influenced by a number of factors” outside of
a judge’s agreement with that decision), with Jason J. Czarnezki et al., An Empirical Analysis of the Confirmation
Hearings of the Justices of the Rehnquist Natural Court, 24 CONST. COMMENT. 127, 143 (2007) (“[A] decision to join a
special opinion is a more finely tuned tool, one that almost certainly indicates agreement not just with the outcome but
also with the reasoning.”).
67 See Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L. REV. 915, 924 (2011).
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extension of time for a party to submit a filing generally does not signal agreement with the
party’s substantive legal position. And while a vote to rehear a case en banc could signal
disagreement with a panel decision’s legal reasoning,68 it could also be prompted by a judge’s
desire to resolve an intracircuit conflict among panel decisions, or may be indicative of the
judge’s view that the issue is of such importance as to merit consideration by the full court.69
Further, as one federal appellate judge noted in a dissent from a decision denying a petition for a
rehearing en banc:
Most of us vote against most such petitions . . . even when we think the panel decision is
mistaken. We do so because federal courts of appeals decide cases in three judge panels.
En banc review is extraordinary, and is generally reserved for conflicting precedent within
the circuit which makes application of the law by district courts unduly difficult, and
egregious errors in important cases. 70
Consequently, a vote for or against rehearing a case en banc or on other procedural matters does
not necessarily equate to an endorsement or repudiation of a particular legal position.71
An important distinction between Judge Barrett and President Trump’s other nominees to the
Supreme Court—Justices Gorsuch and Brett Kavanaugh—is the length of her judicial career.
Justices Gorsuch and Kavanaugh each served for over a decade on the federal bench before their
nominations,72 and during that time authored hundreds of judicial opinions on a diverse range of
topics frequently considered by the Supreme Court, from environmental law to the separation of
powers to the First Amendment.73 Because of her comparatively short tenure on the bench—
slightly less than three years—Judge Barrett has authored fewer opinions than those earlier
nominees, around 90, on a narrower range of topics.74
68 See Patricia M. Wald, The Problem with the Courts: Black-Robed Bureaucracy, or Collegiality Under Challenge?,
42 MD. L. REV. 766, 784 (1983) (“Some judges vote routinely for rehearings en banc on all cases with which they
disagree.”).
69 See Stephen L. Wasby, Why Sit En Banc?, 63 HASTINGS L.J. 747, 762–73 (2012).
70 See United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1994) (Kleinfeld, J., dissenting from denial of
rehearing en banc); see also Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C. Cir. 1987) (Edwards, J., concurring in denial
of rehearing en banc) (“By declining to rehear a case, ‘we do not sit in judgment on the panel; we do not sanction the
result it reached’ . . . . We decide merely that . . . review by the full court is not justified.”).
71 See Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in denial of rehearing en banc) (“No
one thinks a vote against rehearing en banc is an endorsement of a panel decision . . . .”).
72 Prior to their nominations to the Supreme Court, Justice Gorsuch served on the Tenth Circuit for just over a decade,
CRS Gorsuch Report, supra note 53, and Justice Kavanaugh served on the D.C. Circuit for 12 years, CRS Legal
Sidebar LSB10168, President Trump Nominates Judge Brett Kavanaugh: Initial Observations.
73 As circuit judges, then-Judge Gorsuch authored over 850 majority, concurring, or dissenting opinions, see CRS
Report R44772, Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch, coordinated by Michael
John Garcia [hereinafter CRS Report on Gorsuch Opinions], and then-Judge Kavanaugh authored roughly 300
majority, concurring, or dissenting opinions, see CRS Report R45269, Judicial Opinions of Judge Brett M. Kavanaugh,
coordinated by Michael John Garcia [hereinafter CRS Report on Kavanaugh Opinions].
74 See infra Tables & Data: Judge Barrett’s Judicial Opinions. There is another important distinction between Judge
Barrett and then-Judge Kavanaugh, who was nominated to the Supreme Court from the D.C. Circuit. Owing to its
location in the nation’s capital and the number of federal statutes that give the D.C. Circuit special or even exclusive
jurisdiction to review certain agency actions, legal commentators generally agree that the D.C. Circuit’s docket, relative
to the dockets of other circuits, contains a greater percentage of nationally significant legal matters than other regional
circuits. See, e.g., Aaron L. Nielson, D.C. Circuit Review—Reviewed: The Second Most Important Court?, NOTICE &
COMMENT (Sept. 4, 2015), http://yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-important-court-byaaron-nielson (discussing reasons behind D.C. Circuit’s reputation as the “second most important court” after the
Supreme Court); John G. Roberts, What Makes the D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 377
(2006) (“[W]hen you look at the docket. . . you really see the differences between the D.C. Circuit and the other courts.
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For this reason, this report takes a somewhat different approach to examining Judge Barrett’s
record than was taken with those earlier nominees. In addition to discussing Judge Barrett’s
career on the bench, this report considers scholarly works that Judge Barrett authored during her
preceding 15-year career as a law professor.75 For example, Judge Barrett has written several
articles expounding on her preferred modes of constitutional interpretation,76 her approach to
statutory interpretation,77 and her views on stare decisis.78 However, as discussed above, her
engagement with these topics from an academic standpoint does not necessarily predict whether
she would employ the same approach as a Supreme Court Justice.
Notwithstanding the difficulty of predicting a nominee’s future behavior, three overarching (and
interrelated) considerations may inform an assessment of how a jurist is likely to approach the
role of a Supreme Court Justice. First, the nominee’s general approach to the craft of judging—
the process of how a judge approaches key aspects of the job, including writing legal opinions
and resolving legal disputes on a multimember court—may be an important consideration in
predicting how a jurist would behave on the High Court.79 Second, the judge’s overarching
judicial philosophy, including how she evaluates legal questions as a substantive matter, may also
assist in gauging how a nominee may perform.80 Third, reflecting on a nominee’s influences, such
as Judge Barrett’s mentor, Justice Scalia, who the nominee stated had an “incalculable influence”
upon her, may also provide insights to qualities the nominee values.81 These topics are considered
in the next section titled The Role of the Judiciary,82 which is then followed by related discussions
of Judge Barrett’s approach to constitutional83 and statutory interpretation.84
One-third of the D.C. Circuit appeals are from agency decisions. That figure is less than twenty percent nationwide.
About one-quarter of the D.C. Circuit’s cases are other civil cases involving the federal government; nationwide that
figure is only five percent. All told, about two-thirds of the cases before the D.C. Circuit involve the federal
government in some civil capacity, while that figure is less than twenty-five percent nationwide.”).
75 For a comprehensive list of primary sources on Judge Barrett, including her judicial and nonjudicial writings, see
CRS Barrett Sidebar, supra note 18.
76 See discussion infra in Modes of Constitutional Interpretation.
77 See discussion infra in Approach to Statutory Interpretation.
78 See discussion infra in Stare Decisis.
79 See ROBERT A. KATZMANN, COURTS AND CONGRESS 14 (1997) (suggesting that, for Supreme Court nominees with
prior judicial experience, Senators “can focus on the way nominees approach the craft of judging: how they identify
issues, present facts, apply precedent, address opposing arguments, and state the grounds for decision”); L INDA
GREENHOUSE, THE U.S. SUPREME COURT: A VERY SHORT INTRODUCTION 28–29 (2012) (observing that a “judicial record
that indicates how a potential nominee approaches the craft of judging” can provide insights into how a nominee may
approach the role of Supreme Court Justice).
80 See CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS 98
(2007) (declaring “[j]udicial philosophy” to be the “Holy Grail of Senate confirmation hearings”).
81 See Remarks, supra note 11; see also Richard Wolf, Supreme Court Brett Kavanaugh Likes Conservative, and Some
Liberal, Justices and Judges, USA TODAY (July 13, 2018), https://www.usatoday.com/story/news/politics/2018/07/13/
supreme-court-pick-brett-kavanaugh-conservative-liberal-friends-mentor/780256002 (noting, with respect to thenJudge Kavanaugh, that “you can tell a lot about” the nominee based on his judicial friends and mentors).
82 See discussion infra in The Role of the Judiciary.
83 See discussion infra in Modes of Constitutional Interpretation.
84 See discussion infra in Approach to Statutory Interpretation.
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The Role of the Judiciary85
As noted, Judge Barrett has publicly identified with the “judicial philosophy” of her mentor,
Justice Scalia,86 a philosophy reflected in an originalist approach to constitutional interpretation
tempered by pragmatic considerations, and a textualist approach to statutory interpretation, as
discussed later in the report.87 In remarks made during her nomination ceremony, Judge Barrett
referenced another principle that she views as a pillar of Justice Scalia’s judicial philosophy: the
idea that “judges are not policy makers, and they must be resolute in setting aside any policy
views that they might hold.”88 This statement alludes to the broader role of the federal judiciary
and, perhaps, constitutional limits on federal judicial authority.89
While a nominee’s views on the role of the judiciary could span a range of issues, this section
explores four areas:
1. stare decisis, the doctrine suggesting that courts should generally adhere to prior
decisions;90
2. separation of powers, the doctrine encompassing the limits that stem from the
Constitution’s allocation of power among the three branches of the federal
government;91
3. federalism, the doctrine comprised of the “various principles that delineate the
proper boundaries between the powers of the federal and state governments”;92
and
4. the role of the Supreme Court within the system of federal courts.93
To consider Judge Barrett’s views on these subjects, this report examines her judicial decisions
and testimony before Congress, as well as her scholarly writings. As noted, as an appellate judge,
the nominee was bound to follow Supreme Court precedent—a concept legal scholars refer to as
“vertical stare decisis.”94 As Judge Barrett noted during her 2017 confirmation process, a lower
85 CRS Legislative Attorney Victoria L. Killion authored this section of the report.
86 Remarks, supra note 11.
87 See discussion infra in Modes of Constitutional Interpretation and Approach to Statutory Interpretation.
88 Remarks, supra note 11.
89 The reference to “policy views” also seems to echo a point that the nominee stressed during her 2017 Seventh Circuit
confirmation hearing, when she testified that it is “never appropriate for a judge to impose that judge’s personal
convictions, whether they derive from faith or anywhere else, on the law.” Confirmation Hearing on the Nomination of
Amy Coney Barrett To Be Circuit Judge for the Seventh Circuit: Hearing Before the S. Comm. on the Judiciary, 115th
Cong. (Sept. 6, 2017) (unofficial transcript from CQ Congressional Transcripts), https://plus.cq.com/doc/
congressionaltranscripts-5875886?0&searchId=hSPpQ63W [hereinafter 2017 Confirmation Hearing Transcript].
90
See generally CRS Report R45319, The Supreme Court’s Overruling of Constitutional Precedent, by Brandon J.
Murrill.
91 See generally CRS Report R44334, Separation of Powers: An Overview, by Matthew E. Glassman.
92 CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by Andrew
Nolan and Kevin M. Lewis.
93 See generally CRS Report R43746, Congressional Power to Create Federal Courts: A Legal Overview, by Andrew
Nolan and Richard M. Thompson II.
94 See, e.g., Michael T. Morley, Vertical Stare Decisis and Three-Judge District Courts, 108 GEO. L.J. 699, 709 (2020)
(“Vertical stare decisis is the principle that a court must follow and apply (that is, treat as binding law) the precedents
of some other court or courts within the judicial system, even if it disagrees with those precedents or believes them to
be wrongly decided.”). See also discussion supra in Predicting a Nominee’s Future Court Decisions.
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court has “no authority to overrule a precedent of the Supreme Court.”95 By comparison, Judge
Barrett’s articles and essays—most of which were published while she was a law professor at
Notre Dame—have explored complex questions involving the role of federal courts and judges
and the scope of the Supreme Court’s power under the Constitution.96 Her engagement with these
topics from an academic perspective, however, does not mean that she would take the same
positions as a Supreme Court Justice deciding live controversies on the basis of an appellate
record.97 Nevertheless, these writings may provide insight into the nominee’s thoughts on issues
such as stare decisis and the Supreme Court’s supervisory powers.
Stare Decisis
One core concept in Supreme Court jurisprudence is stare decisis: “in English, the idea that
today’s Court should stand by yesterday’s decisions.”98 The Court generally adheres to its prior
decisions absent “a ‘special justification’—over and above the belief ‘that the precedent was
wrongly decided.’”99 But the Court has also emphasized that stare decisis is not “an inexorable
command,”100 especially in constitutional cases, where the need to reconsider a ruling may be
stronger because Congress cannot “abrogate” an erroneous constitutional interpretation as it could
a decision involving a statute.101 For the Court, whether to overrule a prior decision involves
consideration of numerous factors, including
the quality of the opinion’s reasoning;
the workability of the rule it established;
its consistency with other decisions;
developments since the decision; and
reliance interests on the decision.102
95 See Nomination of Amy Coney Barrett to the Seventh Circuit Court of Appeals, Questions for the Record Submitted
September 13, 2017 from Sen. Feinstein, at 2, https://www.judiciary.senate.gov/imo/media/doc/Barrett%20
Responses%20to%20Feinstein%20QFRs.pdf [hereinafter Questions for the Record from Sen. Feinstein]. Circuit court
panels are also bound by the law of the circuit, typically reflected in decisions rendered by the full circuit sitting en
banc. In addition, one three-judge panel cannot “overrule” another three-judge panel’s decision. See Niazi v. St. Jude
Med. S.C., Inc., No. 17-CV-183-JDP, 2017 WL 5159784, at *2 (W.D. Wis. Nov. 7, 2017) (explaining that “the general
rule is that ‘[o]ne panel of a circuit court cannot overrule another panel,’ at least in the absence of an intervening statute
or Supreme Court decision” and that in the Seventh Circuit, “when one panel disagrees with a previous panel’s
decision, the proper procedure is to seek approval from the full court to overrule the earlier decision” (citing 7th Cir. R.
40(e))).
96 See CRS Barrett Sidebar, supra note 18.
97 See discussion supra in Predicting a Nominee’s Future Court Decisions.
98 Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455 (2015).
99 Id. at 455–56 (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).
100 See Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2478 (2018) (quoting, inter alia, Pearson v. Callahan, 555 U.S.
223, 233 (2009); Lawrence v. Texas, 539 U.S. 558, 577 (2003); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
101 See Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (plurality opinion) (reasoning that the precedent under
consideration “involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that
field, where our mistakes cannot be corrected by Congress”).
102 Janus, 138 S. Ct. at 2478–79; see also CRS Legal Sidebar LSB10174, Supreme Court Invalidates Public-Sector
Union Agency Fees: Considerations for Congress in the Wake of Janus, by Victoria L. Killion (discussing how the
Court applied these factors in Janus).
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The Court’s general approach to stare decisis, and which factors each Justice may emphasize, are
relevant across all areas of the Court’s jurisprudence.
The Court issued one decision overruling a Supreme Court constitutional precedent last term,103
but in its October 2018 Term, the Court overruled four cases spanning a variety of constitutional
issues.104 This Term, the Supreme Court is set to hear argument in Fulton v. City of
Philadelphia.105 The Fulton appeal asks the Court to revisit Employment Division v. Smith,106 a
foundational case interpreting the First Amendment’s Free Exercise Clause that has, in recent
years, been applied by lower courts to reject claims by religious entities seeking religious
exemptions from antidiscrimination laws.107 To take another example, in recent Supreme Court
terms, some Justices have called for the Court to reconsider administrative law cases, such as
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,108 which instruct courts on when
to defer to executive agencies’ interpretations of statutes and regulations.109
In evaluating a nominee’s approach to stare decisis, several questions may arise, including (1) to
what extent the nominee believes that Justices should be bound by precedents that they consider
to be wrongly decided, and under what circumstances are they justified in overruling such
precedents; (2) whether the nominee’s approach to stare decisis depends on whether the precedent
involves a constitutional or statutory question; and (3) if there are any particular precedents that
the nominee has indicated should be overruled. Judge Barrett’s testimony before Congress and
her academic writings provide insight into the first two questions, but not necessarily the third.
General Approach
As noted, as a judge on the Seventh Circuit, Judge Barrett was bound to follow Supreme Court
precedent without the option of reconsidering its validity in a stare decisis analysis.110
103 See Ramos v. Louisiana, 140 S. Ct. 1390, 1405–07 (2020) (overruling Apodaca v. Oregon, 406 U.S. 404 (1972)
(plurality opinion) and Johnson v. Louisiana, 406 U.S. 356 (1972) (Powell, J., concurring)).
104 See Constitution Annotated: Table of Supreme Court Decisions Overruled by Subsequent Decisions,
CONSTITUTION.CONGRESS.GOV, https://constitution.congress.gov/resources/decisions-overruled (last visited Sept. 30,
2020) (listing Franchise Tax Bd. of Calif. v. Hyatt, 139 S. Ct. 1485 (2019); Herrera v. Wyoming, 139 S. Ct. 1686
(2019); Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019); and Rucho v. Common Cause, 139 S. Ct. 2484 (2019)).
105 Argument Calendar for the Session Beginning November 2, 2020, U.S. SUPREME CT.,
https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalNovember2020.pdf. See
generally Fulton v. City of Philadelphia, No. 19-123 (2019), https://www.supremecourt.gov/search.aspx?filename=/
docket/docketfiles/html/public/19-123.html.
106 Petition for a Writ of Certiorari at i, No. 19-123 (July 22, 2019), https://www.supremecourt.gov/DocketPDF/19/19123/108931/20190722174037071_Cert%20Petition%20FINAL.pdf; see also Emp. Div. v. Smith, 485 U.S. 660 (1988).
107 See CRS Legal Sidebar LSB10311, Supreme Court Vacates Another Opinion Applying Antidiscrimination Laws to
Religious Objectors, by Valerie C. Brannon. See also, e.g., Matt Fair, Barrett May Upend Mentor Scalia on Religious
Freedom, LAW360 (Sept. 30, 3030, 7:44 PM), https://www.law360.com/publicpolicy/articles/1315367/barrett-mayupend-mentor-scalia-on-religious-freedom (considering how Judge Barrett might rule in Fulton).
108 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
109 See CRS Legal Sidebar LSB10204, Deference and its Discontents: Will the Supreme Court Overrule Chevron?, by
Valerie C. Brannon and Jared P. Cole; CRS Legal Sidebar LSB10322, Kisor v. Wilkie: Supreme Court Upholds the
Auer Doctrine but Clarifies Its Limitations, by Daniel J. Sheffner. See also, e.g., Randolph J. May, Justice Ginsburg’s
Replacement Won’t Decimate the Administrative State, YALE J. REG: NOTICE & COMMENT (Sept. 25, 2020),
https://www.yalejreg.com/nc/justice-ginsburgs-replacement-wont-decimate-the-administrative-state-by-randolph-j-may
(considering how a nominee might rule on these doctrines).
110 Cf., e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[W]e do not acknowledge, and we do not hold, that other
courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that ‘if
a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of
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Accordingly, her judicial record does not provide much insight into how she may treat prior
Supreme Court cases were she to be confirmed to the High Court.111 However, she has discussed
this issue in other forums.
During her 2017 confirmation hearing prior to her appointment to the Seventh Circuit, Judge
Barrett testified that “stability is very important in the law.”112 In response to a question for the
record, she also wrote that a judge may follow precedent that conflicts with the Constitution’s
original meaning.113 Then-Professor Barrett appeared to take the same position in two articles she
wrote responding to critiques of originalism.114 In Congressional Originalism, a 2016 article
written with fellow Notre Dame Law Professor John Copeland Nagle, she observed that “a
commitment to originalism” does not require Supreme Court Justices to revisit “super
precedents” like Marbury v. Madison or Brown v. Board of Education, regardless of what
conclusion an originalist approach might yield.115 In an earlier article, Precedent and
Jurisprudential Disagreement, then-Professor Barrett discussed the institutional features of the
Supreme Court that, in her view, allow the Court to keep “well-settled questions” off of its
docket.116 These include the Court’s “discretionary jurisdiction” to deny certiorari, the four votes
required to grant certiorari, and the Court’s rule generally limiting review to the questions
presented or “fairly included” in the petition.117
In addition to exploring the legitimacy of avoiding a confrontation with “nonoriginalist”
precedent, Judge Barrett has examined whether the Court acts “lawlessly—or at least
questionably—when it overrules precedent.”118 In Precedent and Jurisprudential Disagreement,
then-Professor Barrett wrote: “I tend to agree with those who say that a justice’s duty is to the
Constitution and that it is thus more legitimate for her to enforce her best understanding of the
decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.’” (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989))).
111 Cf. Groves v. United States, 941 F.3d 315, 325 (7th Cir. 2019) (Barrett, J.) (overruling a “portion of” an earlier
panel opinion “holding that mere recertification (or vacatur and reentry) of an order for interlocutory appeal may
extend the jurisdictional deadline,” reasoning that “the [Supreme] Court’s intervening precedent, not to mention our
own, has rendered [that holding] an aberration”); see also id. (“Nor are we disturbing the reliance interests of litigants,
who have minimal reliance interests in procedural and jurisdictional rules.”); Chazen v. Marske, 938 F.3d 851, 863 (7th
Cir. 2019) (Barrett, J., concurring) (“I join the panel’s opinion [with respect to a procedural question involving a
“savings clause” in a federal statute] because it has support in our precedent. I write separately, though, to express
concern about the state of our precedent. As the opinion observes, the complexity of our cases in this area is
‘staggering.’”).
112 2017 Confirmation Hearing Transcript, supra note 89 (response to Sen. Klobuchar).
113 See Questions for the Record from Sen. Feinstein, supra note 95 (Q: “Do you believe it may be unlawful for a judge
to follow precedent that conflicts with the Constitution’s original meaning.” A: “No.”).
114
See Amy Coney Barrett, Originalism and Stare Decisis, 92 NOTRE DAME L. REV. 1921, 1925 (2017) (“As
originalism rose to prominence, its relationship to precedent became an issue. . . . [B]efore originalism recalled
attention to the claim that the original meaning of the text constitutes binding law, no one worried much about whether
adherence to precedent could ever be unlawful—as it might be if the text’s original meaning constitutes the law and
relevant precedent deviates from it.”).
115 See Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. PA. J. CONST. L. 1, 20 (2016).
116 Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 TEX. L. REV. 1711, 1731 (2013).
117 Id. at 1732–33 (quoting SUP. CT. R. 14.1(a)).
118 Id. at 1728 (emphasis added); see also id. at 1728–29 (observing that while “our legal culture does not, and never
has, treated the reversal of precedent as out-of-bounds,” some critics suggest that “overruling is driven by—and
therefore tainted by—partisan political preferences”).
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Constitution rather than a precedent she thinks clearly in conflict with it.”119 The nominee also
surmised that “[r]eversal because of honest jurisprudential disagreement is illegitimate only if it is
done without adequate consideration of, and due deference to, the arguments in favor of letting
the precedent stand.”120 While the former professor has described “the protection of reliance
interests” as a “paramount” goal of the Court’s stare decisis doctrine,121 she has also written that
“when precedent clearly exceeds the bounds of statutory or constitutional text, reliance interests
should figure far less prominently in a court’s overruling calculus.”122
Constitutional Versus Statutory Cases
During her 2017 confirmation process, Judge Barrett observed that the Supreme Court’s
“longstanding approach to stare decisis . . . carries a strong presumption of continuity but permits
overruling in limited circumstances.”123 For Judge Barrett—as for the Court generally124—the
strength of that presumption may depend on the type of matter before the Court.
In statutory cases, then-Assistant Professor Barrett wrote in 2002 that the Supreme Court has
“adopted a ‘super strong’ presumption of irreversibility.”125 That presumption is based on “the
theory that Congress’s failure to amend a statute in response to a judicial interpretation of it
reflects approval of that interpretation.”126 Professor Barrett explored this presumption, along
with another justification for exercising restraint in overruling statutory cases, in a 2005 article.127
In her view, the “congressional acquiescence” rationale for the Supreme Court’s “super-strong”
adherence to precedent in statutory cases “is misguided,” because Congress’s inaction does not
necessarily mean that Congress agreed with the Court’s decision.128 Instead, then-Professor
Barrett posited that the “most compelling explanation for statutory stare decisis” is respect for the
“Constitution’s division of power between the legislative and judicial branches,” because
declining to revisit statutory rulings leaves the resolution of ambiguous laws and the attendant
policy considerations to Congress.129
By comparison, then-Professor Barrett observed in a 2013 article, Precedent and Jurisprudential
Disagreement, that the Supreme Court employs a “weak presumption of stare decisis in
119 Id. at 1728.
120 Id. at 1729.
121 Id. at 1730.
122 Amy Coney Barrett, Stare Decisis and Due Process, 74 U. COLO. L. REV. 1011, 1015 (2003) (reasoning that “the
court must also account for the due process rights of individual litigants”).
123 Questions for the Record from Sen. Feinstein, supra note 95, at 2.
124 See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Considerations in favor of stare decisis are at their acme
in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases such
as the present one involving procedural and evidentiary rules.” (internal citations omitted)).
125 Barrett, Stare Decisis and Due Process, supra note 122, at 1019.
126 Id.
127 Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317, 322–27 (2005)
(discussing the “congressional acquiescence” and “separation-of-powers” rationales for statutory stare decisis).
128 Id. at 322, 331; see also id. at 326 (“Modern textualists refuse to attribute any significance to congressional inaction
following the Supreme Court’s interpretation of a statute.”).
129 Id. at 325. While the article examined the Supreme Court’s approach, its central thesis was that the reasons
animating the Court’s “super-strong” approach to statutory stare decisis did not justify the same approach in the
appellate courts. Id. at 351–52. Professor Barrett argued that Congress is “less likely to know about, much less respond
to”—and thus less likely to “correct”—an erroneous interpretation of a federal law in the lower courts. Id. at 318, 344.
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constitutional cases,” relative to its approach to statutory precedent.130 One benefit of this “soft”
approach, she wrote, is it “accommodates not only a pluralistic Court, but also a pluralistic
society,” allowing challenges to controversial decisions “to be aired,” whether or not they “should
succeed.”131 Identifying another reason to use a “flexible” approach to stare decisis in
constitutional cases in a 2003 article, Stare Decisis and Due Process, then-Professor Barrett noted
that foreclosing a litigant’s challenge to an existing decision based on a “rigid application of stare
decisis” may violate the litigant’s due process “right to an opportunity to be heard.”132 While the
article focused on stare decisis in the federal courts of appeals,133 it also distinguished the
Supreme Court in some important respects. For example, then-Professor Barrett observed that
although “the possibility of appeal” might “soften[] the rigidity of binding horizontal precedent”
in the lower courts, it does not provide the same “escape hatch” for the Supreme Court because
“there is no higher court to which a litigant can appeal.”134 However, she also suggested that the
Supreme Court would be less likely than appellate courts to encounter a tension between due
process and stare decisis, arguing that “[i]t is rare that a litigant is wholly precluded by precedent
in the Supreme Court, because the Supreme Court generally grants certiorari only on open
questions, or on questions that the Court deliberately selects for reconsideration.”135
Specific Precedents
Several Senators expressed interest in Judge Barrett’s position on specific constitutional
precedents during her 2017 Seventh Circuit confirmation hearing. For example, Senator John
Kennedy asked the nominee if she thought Griswold v. Connecticut was “a well-reasoned
opinion.”136 In Griswold, the Supreme Court held that a state law prohibiting the use of
contraceptives violated the right of marital privacy, “a relationship lying within the zone of
privacy created by several fundamental constitutional guarantees.”137 Then-Professor Barrett
responded: “whatever I would have thought about [the case] then [upon first reading the opinion
as a law student] or whatever I would think about it today wouldn’t matter. I would put that aside
in the application of that [case].”138
Several Senators also asked Professor Barrett about her views on the precedential status of
abortion-related decisions, such as Roe v. Wade and Planned Parenthood v. Casey.139 In Roe, the
Court held that the constitutional “right of personal privacy includes the abortion decision,”
though the “right is not unqualified and must be considered against important state interests in
130 Barrett, Precedent and Jurisprudential Disagreement, supra note 116, at 1723.
131 Id.
132 Amy Coney Barrett, Stare Decisis and Due Process, supra note 122, at 1026.
133 Id. at 1015.
134 Id. at 1045.
135 Id. at 1015–16.
136 2017 Confirmation Hearing Transcript, supra note 89 (question from Sen. Kennedy).
137 Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
138 2017 Confirmation Hearing Transcript, supra note 89 (response to question from Sen. Kennedy).
139 Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); see, e.g.,
Questions for the Record for Professor Amy Coney Barrett Submitted by Sen. Richard Blumenthal 1 (Sept. 13, 2017),
https://www.judiciary.senate.gov/imo/media/doc/Barrett%20Responses%20to%20Blumenthal%20QFRs.pdf (asking,
among other questions, whether “the reliance interests flowing from Roe weigh decisively in favor of upholding” the
decision).
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regulation.”140 In Casey, a majority of the Court reaffirmed Roe’s “central holding”141 based, in
part, on stare decisis considerations.142 And a plurality of the Court (three Justices) set out the
“undue burden standard” for evaluating the constitutionality of federal and state abortion
restrictions—a standard that the Court still uses today.143
Senator Dianne Feinstein, Ranking Member of the Senate Judiciary Committee, asked the
nominee how she “evaluate[d] the precedents, plural, with respect to Roe.”144 The nominee
responded:
Well, Roe and Casey and its progeny, as you say, Roe has been affirmed many times and
survived many challenges in the court. And it’s more than 40 years old, and it’s clearly
binding on all Courts of Appeals. And so it’s not open to me or up to me, and I would have
no interest in as a Court of Appeals judge challenging that precedent. It would bind.145
Senator Mazie Hirono asked the nominee if she would include Roe on a list of “super
precedents,” as Roe was not included among the “super precedents” that then-Professor Barrett
identified in her 2013 article.146 The nominee responded that it depended on how “super
precedent” was defined.147 Specifically, she stated that Roe “did not satisfy” the definition of
super precedent used by the scholars she cited in her article.148 However, if one defined super
precedent as “a precedent that’s more than 40 years old and that has survived multiple
challenges,” she “would include Roe on that list.”149
To summarize, Judge Barrett’s testimony and articles suggest that she may hold the following
views with respect to stare decisis: (1) stability in the law is important; (2) Supreme Court
Justices are not constitutionally obligated to revisit settled decisions using an originalist approach;
(3) the Supreme Court has valid mechanisms to avoid any tensions arising from a commitment to
both originalism and stare decisis, including denying certiorari; (4) the Supreme Court may revisit
decisions it believes were wrongly decided, taking reliance interests into account; and (5) there
may be benefits to having a more flexible approach to stare decisis in constitutional cases. Like
many nominees before her, Judge Barrett has not committed to reaffirming or overturning any
particular decisions should the opportunity arise.
140 Roe, 410 U.S. at 154.
141 See Casey, 505 U.S. at 860 (discussing how “advances in maternal health care” did not undermine “the validity of
Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally
adequate to justify a legislative ban on nontherapeutic abortions”).
142 The Court reasoned that “the reservations any of us may have in reaffirming the central holding of Roe are
outweighed by the explication of individual liberty we have given combined with the force of stare decisis.” Id. at 853.
143 See id. at 877 (plurality opinion) (“A finding of an undue burden is a shorthand for the conclusion that a state
regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus.”).
144 2017 Confirmation Hearing Transcript, supra note 89 (question from Sen. Feinstein).
145 Id. (response to Sen. Feinstein).
146 Id. (question from Sen. Hirono).
147 Id. (response to Sen. Hirono).
148 Id. Although Professor Barrett did not restate in her testimony the definition of “super precedent” used in the 2013
article, the article itself describes super precedents as “cases that no justice would overrule, even if she disagrees with
the interpretive premises from which the precedent proceeds.” Barrett, Precedent and Jurisprudential Disagreement,
supra note 116, at 1734 (citing Michael J. Gerhardt, Super Precedent, 90 MINN. L. REV. 1204, 1221 (2006) (“Super
precedent is a construct employed to signify the relatively rare times when it makes eminent sense to recognize that the
correctness of a decision is a secondary (or far less important) consideration than its permanence.”)).
149 2017 Confirmation Hearing Transcript, supra note 89 (response to Sen. Hirono).
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Constitutional Structure
Judge Barrett’s judicial philosophy is also reflected in her analysis of structural constitutional
constraints—mainly, the allocation of power among the three branches of the federal government,
between the federal government and the states, and between the Supreme Court and lower courts.
Separation of Powers
As a Seventh Circuit judge, it appears that Judge Barrett has not resolved an inter-branch dispute
(e.g., between Congress and the executive branch) where the court expressly invoked the
separation-of-powers doctrine, although some of her decisions allude to separation-of-powers
concerns.150 During her circuit court nomination process, Judge Barrett suggested that an exercise
of presidential powers, even in the realm of national security, was not immune from judicial
review:
No person is above the law. In all decisions, including those related to national security,
the President is bound by the laws of the United States. If I am confirmed and a question
related to executive power in a matter of national security comes before me as part of a
case or controversy, I would resolve that issue as I would any other—by engaging in the
judicial process, which includes examining the facts, reading the briefs, conducting
necessary research, listening to the arguments of litigants, discussing the matter with
colleagues, and writing and/or reading opinions.151
With respect to the relationship between the federal judiciary and Congress, Judge Barrett has
defended a textualist approach to statutory interpretation on separation-of-powers grounds in her
scholarly writings. In a 2010 article, she argued that a textualist approach to statutory
interpretation respects the division of power between Congress and the courts.152 By comparison,
she reasoned, an approach that considers extratextual evidence of Congress’s goals, or judgemade rules that further policies other than those expressed in the statutory text, treads on
Congress’s lawmaking function.153 Explaining why, for textualists, “the statutory text is the only
reliable indication of congressional intent,” then-Professor Barrett wrote:
The legislative process is path-dependent and riddled with compromise. A statute’s
language may be at odds with its broad purpose because proponents accept less than they
want in order to secure the bill’s passage. The language may appear awkward because
competing factions agree “to split the difference between competing principles.” To respect
the deals that are inevitably struck along the way, the outcome of this complex process—
150 Cf. Yafai v. Pompeo, 912 F.3d 1018, 1020 (7th Cir. 2019) (Barrett, J.) (“Congress has delegated the power to
determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess
the Executive’s decisions.”); id. at 1023 (deferring to a consular officer’s decision to reject a visa application on the
grounds that it was “facially legitimate and bona fide”); McCann v. Brady, 909 F.3d 193, 198 (7th Cir. 2018) (Wood,
C.J.) (Barrett, J., joining the panel opinion) (stating, in a suit involving “the internal workings of the Illinois State
Senate,” that it is “emphatically not our job” to “micro-manage exactly which resources, and in what amount, the
legislative leaders of the two major political parties dole out to their members,” and reasoning that the “separation of
powers principle reflected in Article II, section 1 of the Illinois Constitution, and inherent in the federal Constitution,
requires us to accept the final output of the legislature without sitting in judgment about how it was produced”).
151 Written Questions for Amy C. Barrett Submitted by Sen. Patrick Leahy 2 (Sept. 6, 2017),
https://www.judiciary.senate.gov/imo/media/doc/Barrett%20Responses%20to%20Leahy%20QFRs.pdf.
152 Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109, 112 (2010). See discussion infra
in Approach to Statutory Interpretation.
153 Barrett, Substantive Canons and Faithful Agency, supra note 152, at 110.
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the statutory text—must control. A judge who reshapes statutory language to alleviate its
awkwardness risks undoing the very bargains that made the statute’s passage possible. 154
In recent years, the Supreme Court has also commented on the link between various principles of
statutory interpretation and separation-of-powers principles. For example, in 2018, the Court
explained that its “rules aiming for harmony over conflict in statutory interpretation grow from an
appreciation that it’s the job of Congress by legislation, not this Court by supposition, both to
write the laws and to repeal them.”155 Viewed in this light, Judge Barrett’s Supreme Court
nomination remarks that she would apply the law “as written” and that “judges are not policy
makers” may reflect her agreement with the Court’s statements that have recognized a
relationship between these principles.156
Federalism
Federalism concerns, which involve the Constitution’s allocation of power between the federal
government and the states, animate several of Judge Barrett’s Seventh Circuit decisions.157 In
some of her dissenting opinions, the nominee argued that the majority did not show sufficient
deference to a state court’s “reasonable application” of Supreme Court precedent.158 For example,
in Schmidt v. Foster, the panel considered whether a state trial court violated the defendant’s
Sixth Amendment right to counsel by allowing the defendant to present evidence to the judge off
the record, without the government’s presence, and then barring the participation of the
defendant’s attorney in that hearing.159 The panel majority concluded that the defendant met “the
stringent standards for habeas corpus relief.”160 Judge Barrett disagreed, arguing that the decision
failed to give the state appellate court—which had denied postconviction relief—the “required
deference.”161 Applying the same standard of review as the majority, she argued that the state
court’s decision to uphold the conviction did not violate “clearly established Supreme Court
precedent,” even though in “retrospect, it may have been better for the judge to decline [the
defendant’s] request” to present evidence in that manner.162 On rehearing en banc, the full circuit
court agreed with Judge Barrett, concluding that while it did not “endorse the constitutionality of
the trial court’s unusual ex parte, in camera examination without counsel’s active participation,”
it could not “brand the state-court decision unreasonable” because the Supreme Court had “‘never
addressed’ a case like this one—factually or legally.”163
154 Id. at 112–13 (footnotes omitted).
155 Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (Gorsuch, J.).
156 Remarks, supra note 11.
157 See generally Nolan & Lewis, supra note 92.
158 See, e.g., Sims v. Hyatte, 914 F.3d 1078, 1092, 1099 (7th Cir. 2019) (Barrett, J., dissenting) (stating that if she “were
deciding the question de novo, [she] would agree with the majority that the suppressed evidence of hypnosis
undermined confidence in the verdict,” but that the state court’s decision to deny postconviction relief “was neither
contrary to, nor an unreasonable application of, clearly established” federal law on Brady violations); Schmidt v.
Foster, 891 F.3d 302, 328 (7th Cir. 2018), reh’g en banc granted, opinion vacated, 732 F. App’x 470 (7th Cir. 2018),
and on reh’g en banc, 911 F.3d 469 (7th Cir. 2018), cert. denied, 140 S. Ct. 96 (2019).
159 Schmidt, 891 F.3d at 328.
160 Id. at 306.
161 Id. at 330 (Barrett, J., dissenting).
162 Id. at 321, 327 (Barrett, J., dissenting).
163 Schmidt v. Foster, 911 F.3d 469, 478 (7th Cir. 2018) (en banc) (quoting Carey v. Musladin, 549 U.S. 70, 76 (2006)),
cert. denied, 140 S. Ct. 96 (2019).
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While arguably of less probative value than cases where Judge Barrett wrote separately, the
nominee also joined a dissenting opinion to the denial of a petition for rehearing en banc in
Planned Parenthood of Indiana & Kentucky, Inc. v. Adams,164 which involved a federal court’s
issuance of a pre-enforcement preliminary injunction against a state abortion restriction. Judge
Barrett disagreed with the majority, joining Judge Michael S. Kanne’s dissenting opinion, which
argued that “[p]reventing a state statute from taking effect is a judicial act of extraordinary gravity
in our federal structure.”165
Federal Court System
In a 2006 law review article, then-Professor Barrett stated that “little agreement exists on either
the constitutionally required structure of the judicial branch or the Supreme Court’s role within
it.”166 The article, The Supervisory Power of the Supreme Court, explored what the Constitution’s
reference to a “supreme” court means for the Court’s supervisory authority over lower federal
courts.167 Specifically, it asked whether the Supreme Court may establish rules of procedure for
lower courts.168 Then-Professor Barrett argued that the “Supreme Court has never justified its
claim to power over inferior court procedure”—that is, its “power to supervise lower courts by
prescribing procedures for them.”169 Delving into the potential sources of this assumed power,
Professor Barrett posited that “Article III’s grant of ‘judicial power’” “surely” vests the Supreme
Court with “the power to develop procedures” governing its own cases, but does not explain its
authority with respect to lower-court procedures.170 The “stronger constitutional basis,” thenProfessor Barrett hypothesized, is Article III’s “designation of the Court as ‘supreme’ and all
other Article III courts as ‘inferior’ to it.”171
Applying an originalist methodology like the one discussed in the next part of this report,172
Judge Barrett first examined a dictionary from the ratification period to determine the possible
meaning of the words “supreme” and “inferior,” which she found accorded with modern usage.173
Applying those definitions, she observed that “Article III’s distinction between ‘supreme’ and
‘inferior’ courts might imply a relationship of subordination, in which the Supreme Court controls
inferior courts.”174 But it might also simply refer to “the relative rank or importance of courts.”175
Given this ambiguity, she looked to the surrounding text and constitutional structure, including
164 Planned Parenthood of Ind. & Ky., Inc. v. Box, 949 F.3d 997 (7th Cir. 2019) (per curiam), cert. granted, judgment
vacated sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., No. 19-816, 2020 WL 3578672 (U.S. July 2, 2020).
See discussion infra in Abortion.
165 Id. at 999 (Kanne, J., dissenting) (Barrett, J., joining dissent). The Supreme Court remanded the case in 2020 in light
of its decision in a case involving a pre-enforcement challenge to a law requiring abortion providers to have admitting
privileges at nearby hospitals. Box v. Planned Parenthood of Ind. & Ky., Inc., No. 19-816, 2020 WL 3578672 (U.S.
July 2, 2020).
166 Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 COLUM. L. REV. 324, 326 (2006).
167 Id. at 324.
168 Id.
169 Id. at 325, 330.
170 Id. at 337.
171 Id. at 342. Article III, section 1 states that the “judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. CONST. art. I, § 3.
172 See discussion infra in Modes of Constitutional Interpretation.
173 Barrett, The Supervisory Power of the Supreme Court, supra note 166, at 345–46.
174 Id. at 346.
175 Id.
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how the word “inferior” was used in the Appointments Clause, and “extraconstitutional” evidence
in the form of historical understandings of the Supreme Court’s supervisory power.176
The article concluded that (1) it was “more consistent with the Constitution’s structure to interpret
the Court’s ‘supremacy’ vis-à-vis inferior federal courts as a limit on the way Congress can
structure the judicial branch than to interpret it as a source of inherent authority for the Supreme
Court”; and (2) historical practice prior to the 20th century “does not support” the Supreme
Court’s supervisory power over lower-courts’ procedures.177 The nominee called this conclusion
“potentially far-reaching,” questioning whether the Supreme Court would then have the authority,
through its decisions, to prescribe rules of statutory interpretation, issue preclusion, claim
preclusion, or stare decisis for all federal courts.178 While the article left the resolution of these
questions “for another day,” it closed by positing that lower “federal courts may have more
independence on these matters than is commonly assumed.”179
Modes of Constitutional Interpretation180
During her Seventh Circuit confirmation, Judge Barrett suggested that she approaches
constitutional interpretation from an originalist perspective, stating: “If precedent does not settle
an issue, I would interpret the Constitution with reference to its text, history, and structure. The
basic insight of originalism is that the Constitution is a law and should be interpreted like one.
Thus, where the meaning of text is ascertainable, a judge must apply it.”181 Judge Barrett has also
evaluated common critiques of originalism in her scholarly writings, seemingly embracing an
originalist approach to constitutional interpretation that is tempered by pragmatic
considerations.182 While originalism takes various forms,183 Judge Barrett has described it as
animated by “two core principles”: (1) that “the meaning of the constitutional text is fixed at the
time of its ratification”; and (2) that the “historical meaning of the text” is legally significant and
generally “authoritative.”184 Under this view, the “original public meaning” of a constitutional
provision is “the law.”185 If the nominee were to follow this approach to constitutional
interpretation as a Supreme Court Justice, she might first examine the Constitution’s text,
followed by its structure, and then English, Colonial, and Founding-era history for additional
insight.186
Like Justice Scalia, however, Judge Barrett appears to believe that originalism must be tempered
by pragmatism.187 In a 2016 article coauthored with John Copeland Nagle, then-Professor Barrett
176 Id. at 347–60, 366–76.
177 Id. at 387.
178 Id.
179 Id.
180 CRS Legislative Attorneys Valerie C. Brannon and Victoria L. Killion authored this section of the report.
181 Questions for the Record from Sen. Feinstein, supra note 95.
182 See, e.g., Barrett, Originalism and Stare Decisis, supra note 114, at 1922.
183 See CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill, “Original Meaning.”
184 Barrett & Nagle, supra note 115, at 5.
185 Id. at 3, 5 n.6.
186 See, e.g., Barrett, The Supervisory Power of the Supreme Court, supra note 166, at 327–28 (using this approach to
examine the Supreme Court’s supervisory authority over inferior court procedure).
187 Barrett & Nagle, supra note 115, at 16 (stating that Justice Scalia was “willing to adulterate [originalist] principle
with pragmatism”). To the extent that Judge Barrett takes a more pragmatic approach to originalism, she might not be
as likely as, for example, Justice Clarence Thomas, to depart from prior Supreme Court precedents that evolved from
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argued that a “commitment to originalism”188 does not require judges and Members of Congress
to “strip every constitutional question down to the studs” or revisit “super precedents” like
Marbury v. Madison or Brown v. Board of Education, regardless of what conclusion an originalist
approach might yield.189 As a practical matter, the authors wrote, the Supreme Court has
institutional features that allow it to avoid constitutional questions that an unwavering
commitment to originalism may present; that is, the Court can narrow the questions it will address
in cases it chooses to hear.190 But acknowledging that the Supreme Court has authority to control
its docket does not inform how Judge Barrett might approach particular constitutional questions
in cases the Court ultimately chooses to hear.
Judge Barrett once observed that however elusive a nominee’s judicial philosophy may be “at the
nomination stage, her approach to the Constitution becomes evident in the opinions she
writes.”191 Although Judge Barrett encountered some constitutional questions on the Seventh
Circuit, not all of her opinions involved a textual or historical analysis of the scope of the
constitutional provision at issue—though in some cases, this may have been a function of lower
courts’ adherence to Supreme Court precedent. For example, Judge Barrett wrote the panel
opinion in United States v. Terry, a Fourth Amendment case involving a warrantless search of a
residence.192 In a three-page analysis based on Supreme Court and Seventh Circuit precedent, the
nominee concluded that it was unreasonable for police officers arriving at the apartment of a man
they had just arrested to assume that a woman who answered the door had authority to consent to
a search of the residence.193 In another Fourth Amendment decision, Judge Barrett applied factors
from the Supreme Court’s “most recent anonymous-tip case” to conclude that police did not have
“reasonable suspicion” to stop a car with four men sitting inside based on “an anonymous 911
call” from a borrowed phone describing “‘boys’ ‘playing with guns’” near the car.194
By comparison, Judge Barrett used an originalist approach in her dissent to the Second
Amendment decision in Kanter v. Barr, a case that all judges on the Seventh Circuit panel agreed
presented a question that could not be answered by looking to prior Supreme Court or Seventh
Circuit decisions.195 Two of the three judges on the panel held that a federal law and a state analog
that prohibited felons from possessing firearms were constitutional as applied to the appellant, an
individual convicted of mail fraud.196 Under the applicable Second Amendment test—which
what an originalist might view as the text’s original meaning. See, e.g., Nelson Lund, Antonin Scalia and the Dilemma
of Constitutional Originalism 14 (George Mason Univ. Legal Studies Research Paper Series, Paper No. LS16-36,
2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2880578 (comparing Justice Thomas’s approach to stare
decisis with Justice Scalia’s, and saying that Justice Thomas’s willingness to “repudiat[e]” rulings that are “inconsistent
with the Constitution . . . is what one would expect from a committed originalist”). Judge Barrett quoted Professor
Lund’s paper in an article seemingly defending Justice Scalia’s approach to stare decisis. Barrett, Originalism and
Stare Decisis, supra note 114, at 1929 & n.35.
188 Barrett & Nagle, supra note 115, at 20.
189
Id. at 4, 14. See discussion supra in The Role of the Judiciary.
190 Barrett & Nagle, supra note 115, at 17–19.
191 Barrett, Precedent and Jurisprudential Disagreement, supra note 116, at 1717.
192 915 F.3d 1141, 1143 (7th Cir. 2020).
193 See id. at 1144–46.
194 United States v. Watson, 900 F.3d 892, 893, 895–96 (7th Cir. 2018).
195 See 919 F.3d 437, 445 (7th Cir. 2019) (majority opinion) (observing that neither the Supreme Court nor the Seventh
Circuit had definitively addressed whether nonviolent felons were outside the Second Amendment’s protective scope);
id. at 453–54 (Barrett, J., dissenting) (similar).
196 Id. at 451 (majority opinion).
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called for a “textual and historical inquiry”197—the court first asked if “nonviolent felons as a
class historically enjoyed Second Amendment rights.”198 Finding the historical evidence
“inconclusive,” the majority moved to the test’s second step, asking whether the law was
“substantially related to an important governmental objective,” and held that the government met
this burden.199
In dissent, Judge Barrett posited that the “best historical support for a legislative power to
permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly
authorizing the legislature to impose—such a ban.”200 While observing that “scholars ha[d] not
been able to identify any such laws,” Judge Barrett did not end her analysis with that conclusion,
proceeding to survey “ratifying conventions” and “English and early American restrictions on
arms possession.”201 In Judge Barrett’s view, this historical evidence led to the conclusion that the
government can disarm “a category of people that it deems dangerous.”202 She reasoned that the
dispossession statutes at issue, however, were not tailored to this interest, and that, “[a]bsent
evidence that [the appellant] would pose a risk to the public safety if he possessed a gun, the
governments cannot permanently deprive him of his right to keep and bear arms.”203
Approach to Statutory Interpretation204
The two predominant modern theories of statutory interpretation are purposivism and
textualism.205 Purposivists and textualists differ in their theoretical approach to interpreting
statutes as well as the tools they use to determine statutory meaning. On a theoretical level,
purposivists look to a statute’s purpose, asking what problem Congress was addressing, and how
the resulting statute sought to accomplish that goal.206 Judges ascribing to purposivism may look
to legislative history to determine what Congress meant.207 Textualists, like Justice Scalia, by
contrast, focus on a statute’s text, seeking to determine how a “reasonable user of words,” albeit
one familiar with the statutory structure, would read the law’s words.208 Many textualists reject
the use of legislative history, given that it is extratextual,209 and may instead seek to determine the
2
197 Id. at 441 (quoting Ezell v. Chicago, 846 F.3d 888, 892 (7th Cir. 2017)).
198 Id. at 445.
199 Id. at 447–48.
200 Id. at 454 (Barrett, J., dissenting).
201 Id. at 454–58.
202 Id. at 464.
203 Id. at 469.
204 CRS Legislative Attorneys Valerie C. Brannon and Victoria L. Killion authored this section of the report.
205 See, e.g., CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon,
“Major Theories of Statutory Interpretation.”
206 See, e.g., ROBERT A. KATZMANN, JUDGING STATUTES 31 (2014); HENRY M. HART JR. & ALBERT M. SACKS, THE
LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1148 (William N. Eskridge Jr. & Phillip
P. Frickey eds., 1994).
207 See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 848
(1992).
208 Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL’Y 59, 65
(1988); accord, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal
Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17
(Amy Gutmann ed., 1997).
209 See, e.g., John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 420 (2005).
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text’s ordinary meaning by looking to dictionaries or the statutory “canons of construction” that
are said to reflect rules of grammar or long-standing legal conventions.210
Some scholars have argued that the divide between proponents of the two systems has narrowed
over time. Judicial adherence to a primarily textual approach to statutory interpretation has grown
over time,211 to the point where Justice Elena Kagan observed in 2015 that “we’re all textualists
now.”212 And even many self-described textualists will look to context beyond the plain words of
the law.213 In a 2017 article, Judge Barrett acknowledged this blurring of lines between textualism
and purposivism, observing that the two schools “have moved closer together in the decades since
Justice Scalia launched his campaign for textualism.”214 The nominee argued, however, that
“fundamental differences” remain between the theories, particularly with respect to “which set of
linguistic conventions” judges use.215
In particular, then-Professor Barrett noted that while some jurists seek to understand and account
for “the realities of the complex legislative process”216 by placing themselves in the shoes of a
“hypothetical legislator—a congressional insider,”217 textualists “approach language from the
perspective of an ordinary English speaker—a congressional outsider.”218 She cited King v.
Burwell as an example of the “congressional insider” approach.219 In that decision, a Supreme
Court majority interpreted the Affordable Care Act’s reference to health care exchanges
“established by the State” as including federal exchanges, observing that the Act’s complexity
and “several features” of its passage produced a bill with “more than a few examples of inartful
drafting,” making it difficult to rely solely on the text.220 Then-Professor Barrett concluded that
“textualists would reject” the congressional insider approach.221 According to the nominee,
textualists “consider themselves bound to adhere to the most natural meaning of the words at
issue because that is the way their principal—the people—would understand them.”222
210 See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 9 (2012)
(discussing the authors’ “normative” approach to compiling the canons of construction); id. at 69 (discussing the
“ordinary-meaning rule”); id. at 426 (defining “canon of construction” as a “principle that guides the interpreter of a
text on some phase of the interpretive process”).
211 For a further discussion of the rise of textualism, including Justice Scalia’s influence on its ascent to prominence,
see, e.g., Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 30 (2006) (“Indeed, textualism
has been so successful in altering the views of even nonadherents that it has become increasingly difficult for textualists
to identify, let alone conquer, any territory that remains between textualism’s adherents and nonadherents.”); James J.
Brudney & Corey Ditslear, Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect,
29 BERKELEY J. EMP. & LAB. L. 117, 122 (2008) (finding that, between 1986 and 2006, “liberal” Justices seemingly
opted not to rely upon legislative history materials in certain majority opinions that Justice Scalia joined because of his
well-known opposition to the use of such materials).
212 Harvard Law School, The 2015 Scalia Lecture: A Dialogue with Justice Elena Kagan on the Reading of Statutes,
YOUTUBE (Nov. 25, 2015), https://www.youtube.com/watch?v=dpEtszFT0Tg&feature=emb_title.
213 See, e.g., Molot, supra note 211, at 3; Lawrence M. Solan, The New Textualists’ New Text, 38 LOY. L.A. L. REV.
2027, 2028–29 (2005).
214 Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. CHI. L. REV. 2193, 2195 (2017).
215 Id. at 2193–94.
216 Id. at 2195.
217 Id. at 2194.
218 Id.
219 Id. at 2198.
220 King v. Burwell, 576 U.S. 473, 491 (2015).
221 Barrett, Congressional Insiders and Outsiders, supra note 214, at 2195.
222 Id.
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In another article, then-Professor Barrett expressed doubt as to whether courts can “glean what
was ‘really’ going on behind the scenes of a statute.”223 In her view, deferring to the legislative
judgments expressed in the text alone avoids “pull[ing] judges into terrain they are not good at
navigating.”224 Further, citing Justice Scalia’s dissent in King v. Burwell, she stated that for “those
who share [Justice Scalia’s] commitment to uphold text, . . . it is illegitimate for the Court to
distort . . . a statute to achieve what it deems a preferable result.”225
As mentioned, while Judge Barrett has aligned herself with Justice Scalia’s textualist philosophy,
stating that a “judge must apply the law as written,”226 a focus on the text of a statute does not
necessarily mean that the nominee would apply a statute’s words literally, without reference to
any outside context. As in her approach to constitutional originalism, Judge Barrett could be
viewed as sometimes embracing a more pragmatic approach to textualism.227 In a lecture
delivered in 2019, she emphasized that textualism does not require “judges to construe language
in a wooden, literalistic way.”228 Instead, she stated that text can only be understood in the context
of the “shared linguistic conventions among those who speak the language.”229
Although it is impossible to say definitively how Judge Barrett’s rejection of “literalism”230
would play out in any particular case, for Supreme Court watchers, this phrase may bring to mind
last term’s Bostock v. Clayton County decision, which illuminates how even jurists taking a
textualist approach may disagree about when the plain text controls, and when it is appropriate to
follow outside contextual understandings.231 Justice Gorsuch, writing for a majority of the Court
in Bostock, concluded that Title VII of the Civil Rights Act of 1964, which prohibits employment
discrimination on the basis of sex, also protects gay and transgender employees.232 In so doing,
Justice Gorsuch stated that in “a society of written laws,” the Court was “not free to overlook” the
“broad language” of Title VII.233 Writing in dissent, however, Justice Kavanaugh accused the
majority of taking an improperly “literalist”234 approach to interpreting the statute, rather than
looking to the law’s “ordinary meaning.”235 In Justice Kavanaugh’s view, “common parlance and
223 Amy Coney Barrett, Book Review, 32 CONST. COMMENTARY 61, 70 (2017).
224 Id. at 73–74.
225 Id. at 84.
226 Remarks, supra note 11.
227 See Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 CASE W. RES. 855, 856
(2020).
228 Id.
229 Id. at 857.
230 Id. at 856.
231 Compare Bostock v. Clayton Cty., 140 S. Ct. 1731, 1745 (2020) (noting that a conversational speaker is likely to
focus on the “most relevant” or “direct cause rather than list literally every but-for cause,” and so may be likely to say
they were fired “because they were gay or transgender, not because of sex,” but ruling that “these conversational
conventions do not control Title VII’s legal analysis”), with id. at 1828 (Kavanaugh, J., dissenting) (stating that “[a]s to
common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of
sex”).
232 Id. at 1737 (majority opinion).
233 Id. at 1754. Justice Gorsuch wrote that, logically, “it is impossible to discriminate against a person for being
homosexual or transgender without discriminating against that individual based on sex,” and if a person’s sex was a
“but-for cause” of a prohibited employment action, that constitutes discrimination “because of” sex under Title VII. Id.
at 1739–41.
234 Id. at 1824–25 (Kavanaugh, J., dissenting).
235 Id. at 1828.
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common legal usage treat sex discrimination and sexual orientation discrimination as two distinct
categories of discrimination.”236
In the 2019 lecture mentioned above, Judge Barrett highlighted this precise interpretive
question—whether Title VII prohibits discrimination on the basis of sexual orientation—noting
that in the Seventh Circuit, two textualist judges disagreed on how to resolve the issue.237 She did
not give any hints as to how she would have resolved the dispute, but cited it as an example of
how textualist judges will not “always agree on what language means in context.”238 Accordingly,
even if the Supreme Court were composed of a majority of Justices who share a generally
textualist approach to interpreting statutes, that would not ensure that they would always agree on
how to resolve specific disputes.
Turning to the tools Judge Barrett may use in statutory interpretation, she has emphasized that
“ordinary meaning” is paramount, and dictionary definitions generally will not control over “the
plain communicative content of the words” in the context in which they were used.239 Asked
during her 2017 confirmation hearing about when a judge should consult legislative history, the
nominee testified that “when the text is clear, I would see as a judge no reason to consult
[legislative history].”240 In a 2010 article, moreover, then-Professor Barrett explored whether the
use of the so-called substantive canons of construction, which generally embody legal norms
rather than rules of grammar, are consistent with textualism.241 Discussing the rule of lenity—the
canon that ambiguous criminal statutes should be construed in favor of the criminal
defendant242—she noted that this canon could be in tension with textualism to the extent that a
judge would be looking outside the statutory text for the law’s meaning.243 Judge Barrett
concluded, however, that because the Supreme Court will not invoke the canon unless the statute
is ambiguous, the canon could be seen as “respecting the outer limits of the text.”244 ThenProfessor Barrett suggested that substantive canons may be further justified to the extent that they
enforce constitutional norms, “guard[ing] against the inadvertent congressional exercise of
extraordinary constitutional powers.”245 Nonetheless, she cautioned that courts “cannot” apply
these canons “at the expense of a statute’s plain language.”246
On the Seventh Circuit, Judge Barrett has taken a textualist approach to interpreting and applying
federal law, which at times has resulted in vivid critiques of congressional enactments. In one
case, she remarked that the wording of a provision in the Telephone Consumer Protection Act was
236 Id. Justice Gorsuch, in response, believed that his reading was consistent with “the ordinary public meaning of the
statute’s language at the time of the law’s adoption”: “An employer violates Title VII when it intentionally fires an
individual employee based in part on sex,” regardless of whether “other factors besides the plaintiff ’s sex contributed
to the decision.” Id. at 1741 (majority opinion).
237 Barrett, Assorted Canards, supra note 227, at 859.
238 Id.
239 Id.
240 Judicial and Justice Department Pending Nominations, C-SPAN (Sept. 6, 2017), https://www.cspan.org/video/?433501-1/amy-coney-barrett-testifies-seventh-circuit-confirmation-hearing-2017. In 2020, Judge
Barrett joined an opinion stating that where the text of a statute is unambiguous, the court would not resort to
legislative history. See Preston v. Midland Credit Mgmt., 948 F.3d 772, 783 (7th Cir. 2020).
241 Barrett, Substantive Canons and Faithful Agency, supra note 152, at 110.
242 See id. at 128.
243 Id. at 110.
244 Id. at 166–67.
245 Id. at 176.
246 Id. at 181.
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“enough to make a grammarian throw down her pen.”247 The nominee’s opinion for the court
noted there were “at least four ways” to read the relevant definitional provision.248 Writing for the
panel, Judge Barrett adopted the first reading, which was “the most natural” based on sentence
construction and grammar, although it did not seem to square with “ordinary usage” and created
surplusage by rendering another term redundant.249 The second reading avoided these problems,
but was inconsistent with “the grammatical structure of the sentence,” and required the court “to
insert a significant word into the statute.”250 Judge Barrett’s opinion rejected the third option
because it asked the court “to contort the statutory text almost beyond recognition” and would
have had “far-reaching consequences,” creating broad liability that she said was “inconsistent
with the statute’s narrower focus.”251 And the fourth reading ignored a comma in the statutory
definition—one she believed was significant because it “seem[ed] to be ungrammatical” and “a
deliberate drafting choice.”252
Judge Barrett has sometimes parted ways with her Seventh Circuit colleagues over matters of
statutory interpretation. In Cook County v. Wolf, the panel majority upheld a preliminary
injunction against a Trump Administration rule concerning the “public-charge” provision in the
Immigration and Nationality Act (INA).253 The INA provision deems “inadmissible” “[a]ny alien”
who, “in the opinion of the Attorney General at the time of application for admission or
adjustment of status,” is “likely at any time to become a public charge” based on a nonexhaustive list of factors.254 In 2019, the U.S. Department of Homeland Security (DHS) issued a
rule defining “public charge” as “an alien who receives one or more” specified “public benefits,”
including Medicaid and subsidized housing assistance, for “more than 12 months in the aggregate
within any 36-month period,” with the receipt of multiple benefits in a single month counting as
separate months.255
Applying the Supreme Court’s two-step Chevron framework for analyzing agency rules,256 the
circuit panel held that, although DHS was authorized to interpret “public charge,”257 its rule was
not a reasonable interpretation of the INA.258 The majority reasoned that the rule “penalize[d]
disabled persons in contravention of the Rehabilitation Act” and “conflict[ed] with Congress’s
affirmative authorization for designated immigrants to receive the benefits the Rule targets.”259
The majority further criticized the DHS rule by saying that “it does violence to the English
247 Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 460 (7th Cir. 2020).
248 Id. at 463.
249 Id. at 464–65.
250 Id. at 465–66.
251 Id. at 466–67. Judge Barrett rejected the plaintiff’s arguments that this reading was consistent with the statutory
structure and subsequent congressional actions. Id.
252 Id. at 468.
253 962 F.3d 208, 215 (7th Cir. 2020). Circuit courts have divided over the rule’s validity, with some lower courts
issuing preliminary injunctions that the Supreme Court or appellate courts have stayed pending resolution of the
appeals. See Wolf v. Cook Cnty., 140 S. Ct. 681 (2020) (mem.); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599
(2020) (mem.).
254 8 U.S.C. § 1182.
255 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,501 (Aug. 14, 2019) (to be codified at 8 C.F.R.
§ 212.21(a)).
256 See generally CRS Report R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
257 Cook Cnty., 962 F.3d at 226.
258 Id. at 229.
259 Id. at 228.
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language and the statutory context to say that [public charge] covers a person who receives only
de minimis benefits for a de minimis period of time.”260 Judge Barrett dissented from the panel
opinion.261 In her view, the majority understood “public charge” to “mean something only slightly
broader than ‘primarily and permanently dependent,’” but her review of the provision’s history
and the statutory scheme led her to conclude that it was “a much more capacious term”—broad
enough to justify the rule’s definition.262 Judge Barrett also rejected the plaintiffs’ attempt to
assert what the nominee termed “the reenactment canon,”263 a substantive canon of statutory
interpretation suggesting that when Congress reenacts a law, it also ratifies any settled judicial or
administrative understandings of that law.264 Relying on an opinion in which Justice Scalia
discussed this canon, the nominee concluded that the plaintiffs had not met the “high” bar for
showing there was a settled judicial interpretation of the term “public charge” at the time of
reenactment.265
Judge Barrett also dissented from an en banc opinion in United States v. Uriarte,266 involving
what one judge later described as “a difficult question of statutory interpretation”267 as to whether
the revised penalties under the First Step Act apply to resentencing. Enacted in 2018, the First
Step Act provided that contemporaneous convictions for using a firearm during a crime of
violence no longer triggered a 25-year mandatory minimum sentence.268 The amendment applied
retroactively “if a sentence for the offense has not been imposed as of such date of enactment.”269
A majority of the Seventh Circuit sitting en banc held that the defendant, who was initially
sentenced before the First Step Act became law, was “entitled to be sentenced under the
provisions of the Act” because he was awaiting resentencing on the date of enactment.270
Writing for the three dissenting judges, Judge Barrett reasoned that the “more persuasive” reading
of Congress’s “use of the present-perfect tense in the phrase ‘has not been imposed’” was that a
criminal sentence is “imposed” when the district court hands down the initial sentence, even if
that sentence is later reconsidered, vacated, or appealed.271 The nominee relied on the “specific
words” used in the statute, including its reference to “‘a sentence,’ not ‘the sentence.’”272 Judge
Barrett also faulted the majority for relying too heavily on its view of what Congress must have
260 Id. at 229.
261 Id. at 234 (Barrett, J., dissenting).
262 Id. at 248.
263 Id. at 243.
264 See id. at 242 (“The plaintiffs have a backup argument: even if the term was unsettled in the late nineteenth century,
they claim that it became settled in the twentieth. . . . [T]he plaintiffs say, whatever uncertainty may have surrounded
the term in 1882, there was no uncertainty when Congress reenacted the provision.”); see generally Brannon, supra
note 205 (discussing the presumption of legislative acquiescence).
265 Cook Cnty., 962 F.3d at 242–43 (Barrett, J., dissenting) (“The bar for establishing a settled interpretation is high: at
the time of reenactment, the judicial consensus must have been ‘so broad and unquestioned that we must presume
Congress knew of and endorsed it.’” (quoting Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 349 (2005) (Scalia,
J.))).
266 No. 19-2092, 2020 WL 5525119, at *7 (7th Cir. Sept. 15, 2020) (en banc) (Barrett, J., dissenting).
267 United States v. Bethany, No. 19-1754, 2020 WL 5525404, at *8 (7th Cir. Sept. 15, 2020) (Scudder, J., concurring)
(expressing agreement with Judge Barrett’s Uriarte dissent, but noting that “Uriarte is now the law of the Circuit”).
268 Uriarte, 2020 WL 5525119, at *3 (majority opinion).
269 Id.
270 Id. at *1.
271 Id. at *8 (Barrett, J., dissenting).
272 Id. at *8–9.
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considered in passing the law, rather than on “the plain text of the statute.”273 In a footnote, Judge
Barrett further said that the rule of lenity did not apply “because the traditional tools of statutory
interpretation yield an answer to the statute’s meaning.”274
Opinions such as these suggest that while Judge Barrett may consult history as part of a
constitutional analysis (e.g., from the Founding-era or the relevant ratification period), she may
take a more strictly textualist approach to statutory interpretation, focusing on the language and
structure of the law at issue. As mentioned, the nominee’s approach to textualism is tempered by
pragmatism; she has said that textualism is not literalism,275 and in at least one judicial opinion,
she asked whether the practical consequences of an interpretation seemed to be in line with the
“focus” of the law.276
Abortion277
As with prior Supreme Court nominations, Congress will likely be interested in Judge Barrett’s
views on the Court’s abortion jurisprudence,278 particularly given Justice Ginsburg’s role in these
cases. Justice Ginsburg was a consistent opponent of measures that she viewed as unduly
restricting abortion access.279 In recent years, Justice Ginsburg was part of five-Justice majorities
in cases that struck down various state regulations of abortion providers.280 If Judge Barrett
adopts the position of many prior nominees to the federal courts—as she did in her 2017 Seventh
Circuit confirmation hearing—she may refrain from offering her views on specific Supreme
Court decisions.281 Consequently, in the absence of any express indication of the nominee’s
position on specific Supreme Court opinions addressing abortion rights, Senators might attempt
to determine how Judge Barrett would rule in abortion cases by (1) considering the nominee’s
general approach to stare decisis282 because it may inform her decisions on whether to overrule
precedents that establish a constitutional right to abortion or delimit the constitutional boundaries
273 Id. at *9–10.
274 Id. at *9 n.4.
275 Barrett, Assorted Canards, supra note 227, at 856.
276 Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 467 (7th Cir. 2020).
277 CRS Legislative Attorney Victoria L. Killion authored this section of the report.
278 Judge Barrett’s 2017 confirmation hearing examined her views on the Court’s abortion cases. See 2017
Confirmation Hearing Transcript, supra note 89; see also discussion supra in Stare Decisis. In addition, Senators
questioned then-Judges Gorsuch and Kavanaugh about their views on the issue during their Supreme Court
confirmation hearings. See John T. Bennett, Kavanaugh Signals Landmark Abortion Case Roe Is ‘Settled’ Matter, CQ
ROLL CALL (Sept. 5, 2018), https://www.rollcall.com/2018/09/05/kavanaugh-signals-landmark-abortion-case-roe-issettled-matter; Matt Ford, Gorsuch: Roe v. Wade Is the ‘Law of the Land’, ATLANTIC (Mar. 22, 2017),
https://www.theatlantic.com/politics/archive/2017/03/neil-gorsuch-confirmation-hearing/520425.
279 See, e.g., Gonzales v. Carhart, 550 U.S. 124, 170–71 (2007) (Ginsburg, J., dissenting).
280 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292
(2016).
281 Cf. 2017 Confirmation Hearing Transcript, supra note 89 (response to Sen. Feinstein) (“As for your question about
Roe, I think that the line that other nominees before the committee have drawn in refraining from comment about their
agreement or disagreement or the merits or demerits of any Supreme Court precedent is a prudent one, because I would
commit if confirmed to follow unflinchingly all Supreme Court precedent, and I would not want to leave the
impression that I would give some precedents less weight than others because of any kind of, you know, academic
disagreement with one.”); see generally CRS Judicial Nominees Report, supra note 36.
282 See discussion supra in Stare Decisis.
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on government regulation of the practice; and (2) examining the nominee’s decisions in the few
abortion cases that came before her as a circuit judge.
Stare decisis has received sustained attention in the abortion context as commentators discuss
whether a newly constituted Supreme Court might accept a case asking the Court to overrule
Roe v. Wade or change the undue burden standard for evaluating the constitutionality of abortion
regulations as set out in Planned Parenthood of Southeastern Pennsylvania v. Casey.283 Stare
decisis played a key role in Casey and its progeny—including in a decision from the Court’s
October 2019 Term.284 In June Medical Services v. Russo, decided in June 2020, a narrow
majority of the Court ruled that a Louisiana law requiring abortion providers to have admitting
privileges at nearby hospitals posed an unconstitutional undue burden on abortion access.285 The
law was “almost word-for-word identical” to a Texas law that the Court invalidated in 2016.286
Justice Ginsburg was in the majority in both cases,287 but it was Chief Justice John Roberts who
provided the key fifth vote in June Medical Services, explaining that although he thought the
2016 case was “wrongly decided,” stare decisis required the Court to “treat like cases alike.”288 In
these circumstances, the nominee’s approach to constitutional stare decisis,289 discussed earlier in
this report, is potentially important if she is confirmed to succeed Justice Ginsburg. Because she
may cast the deciding vote in a future case, Judge Barrett’s approach would likely be closely
watched in the upcoming Supreme Court terms.
As noted above, the joining of a judicial opinion authored by a colleague may not signal full
agreement with that opinion. Still, Judge Barrett’s participation in en banc panels in two cases
involving challenges to abortion regulations, in which she did not author an opinion but joined a
colleague’s dissent, may lend some insight into her views. In 2018, the Seventh Circuit declined a
petition for a rehearing en banc in Planned Parenthood of Indiana & Kentucky, Inc. v.
Commissioner of Indiana State Department of Health—a case that the Supreme Court later
considered during its 2018 Term.290 The case involved two Indiana statutes—one prohibiting
abortions “solely because” of the sex, race, or disability of the fetus,291 and the other regulating
“the disposal of fetal remains after an abortion or miscarriage”—though the petition for rehearing
en banc concerned only the disposal statute.292
Judge Barrett joined Judge Frank H. Easterbrook’s opinion dissenting from the petition’s
denial.293 Before turning to the disposal statute, the dissent expressed its “skeptic[ism]” about the
panel’s conclusion in the underlying opinion that the selective abortion statute was
283 See, e.g., Josh Gerstein, How Amy Coney Barrett Might Rule, POLITICO (Sept. 26, 2020), https://www.politico.com/
news/2020/09/26/how-amy-coney-barrett-might-rule-422055; Bennett, supra note 278.
284 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 853 (1992) (“[T]he reservations any of us may have in
reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined
with the force of stare decisis.”).
285 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2132 (2020).
286
Id. at 2112.
287 See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
288 June Med. Servs., 140 S. Ct. at 2133–34 (Robert, C.J., concurring in the judgment).
289 See discussion supra in Stare Decisis.
290 Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 917 F.3d 532, 533 (7th Cir. 2018)
(per curiam); see also Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019), rev’g in part Planned
Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 888 F.3d 300 (7th Cir. 2018).
291 IND. CODE §§ 16-34-4-4–16-34-4-8.
292 Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 533 (citing IND. CODE § 16-34-3-4).
293 Id. at 536 (Easterbrook, J., dissenting) (Barrett, J., joining dissent).
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unconstitutional.294 In the dissent’s view, “[n]one of the [Supreme] Court’s abortion decisions
holds that states are powerless to prevent abortions designed to choose the sex, race, and other
attributes of children,” which the dissent referred to as an “anti-eugenics law.”295 Because Indiana
had not sought rehearing on that portion of the panel’s decision, however, Judge Easterbrook
wrote that he was “content to leave [the question] to the Supreme Court.”296 Next, addressing the
disposal statute, the dissent criticized the panel for “invalidat[ing] a statute that would be
sustained” under the court’s rational basis standard “had it concerned the remains of cats or
gerbils.”297 In 2019, the Supreme Court reversed the panel’s decision, upholding the disposal
statute on rational basis grounds.298 In dissent, Justice Ginsburg argued that the disposal statute
should have been subject to the higher, constitutional “undue burden” standard for abortion
regulations.299
Similarly, in 2019, Judge Barrett joined a dissent from the en banc court’s decision not to rehear
Planned Parenthood of Indiana and Kentucky, Inc. v. Adams, questioning the lower court’s
remedy rather than its analysis of the state’s abortion regulation per se.300 The original three-judge
panel, with one judge dissenting, upheld a district court’s preliminary injunction against an
Indiana parental notification requirement before the law took effect.301 Judge Barrett joined the
four judges who would have reheard the dispute “[g]iven the existing unsettled status of preenforcement challenges in the abortion context.”302 The dissent, written by Judge Kanne,
reasoned that “[p]reventing a state statute from taking effect is a judicial act of extraordinary
gravity in our federal structure.”303 The Supreme Court remanded the case in 2020 in light of its
294 Id.
Id. But cf. Planned Parenthood of Ind. & Ky., Inc., 888 F.3d at 306 (opinion of three-judge panel) (“The nondiscrimination provisions clearly violate this well-established Supreme Court precedent, and are therefore,
unconstitutional. The provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose.
These provisions are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability
which the Supreme Court has clearly held cannot be imposed by the State.”).
296 Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 537 (en banc) (Easterbrook, J., dissenting) (Barrett, J., joining
the dissent).
297 Id.
298 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782 (2019) (per curiam) (holding that the statute
was “rationally related to the State’s interest in proper disposal of fetal remains” “even if it [was] not perfectly tailored
to that end,” and explaining that the case “as litigated” did not “implicate [the Supreme Court’s] cases applying the
undue burden test to abortion regulations”). The Supreme Court denied certiorari on the second question presented,
which challenged the panel’s ruling on the selective abortion statute. Id. at 1781.
299 Justice Ginsburg would have denied the petition for certiorari entirely, calling it “‘a waste of th[e] [C]ourt’s
resources’ to take up a case simply to say we are bound by a party’s ‘strategic litigation choice’ to invoke rational-basis
review alone, but ‘everything might be different’ under the close review instructed by the Court’s precedent.” Id. at
1793 (Ginsburg, J., concurring in part and dissenting in part) (quoting 917 F.3d at 534, 535 (opinion of Wood, C.J.)).
300 Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973 (7th Cir. 2019), rehearing en banc denied sub nom.
Planned Parenthood of Ind. & Ky., Inc. v. Box, 949 F.3d 997 (7th Cir. 2019) (per curiam), cert. granted, judgment
vacated sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., No. 19-816, 2020 WL 3578672 (U.S. July 2, 2020).
301 Id. at 991 (concluding that “Indiana’s notice law creates a substantial risk of a practical veto over a mature yet
unemancipated minor’s right to an abortion” was “likely to impose an undue burden” for those minors, because the
state had not supported “its claimed justifications” for the restriction or “undermine[d] with evidence Planned
Parenthood’s showing about the likely effects of the law”).
302 Planned Parenthood of Ind. & Ky., Inc., 949 F.3d at 999 (Kanne, J., dissenting) (Barrett, J., joining dissent).
303 Id.
295
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decision in a different pre-enforcement challenge—June Medical Services v. Russo—discussed
above.304
Judge Barrett’s vote in a third case concerning speech outside of abortion clinics followed
binding Supreme Court precedent on the First Amendment, and thus may provide limited, if any,
insight into her views on the Court’s Fourteenth Amendment, substantive-due-process–based
abortion jurisprudence like Roe or Casey. The Seventh Circuit case, Price v. City of Chicago,
involved a Chicago ordinance creating a “floating bubble zone” around abortion clinics that
prohibited individuals from approaching within eight feet of a person entering the facility.305 The
case implicated the First Amendment’s Free Speech Clause, rather than Casey’s undue burden
standard.306 The three-judge panel, which included Judge Barrett, concluded that the ordinance
was constitutional based on controlling Supreme Court precedent.307 In an opinion written by
Judge Diane Sykes, the court cited Hill v. Colorado, in which the Supreme Court upheld another
bubble zone that operated in an even larger radius.308 Although the Price panel thought that
subsequent First Amendment decisions from the Court had “eroded Hill’s foundation”—
discussing these rulings at length—it reasoned that “[o]nly the Supreme Court can bring harmony
to these precedents.”309 Because the Supreme Court had not overruled Hill, the panel concluded
that the Hill decision “remain[ed] binding” on the Seventh Circuit.310
As mentioned, it is unclear whether these three opinions, which Judge Barrett joined but did not
author, are reliable indicia of the nominee’s position on abortion regulations or the Supreme
Court’s abortion case law more broadly.311 The dissent Judge Barrett joined in Adams centered on
federalism and procedural concerns, rather than disagreement with the Supreme Court’s abortion
decisions, by questioning the validity of enjoining a state statute before it was enforced.312 And
the Price opinion was based on controlling free speech precedent.313 In Box, the Supreme Court
ultimately agreed with Judge Easterbrook’s dissent (which Judge Barrett joined) that Indiana’s
disposal statute survived rational basis review.314 In these circumstances, Judge Barrett’s decision
to join the dissent in Box may be the most instructive of her Seventh Circuit abortion-related
rulings—though it too does not predict how the nominee might rule in future abortion cases.
304 Box, 2020 WL 3578672.
305 Price v. Chicago, 915 F.3d 1107, 1109 (7th Cir. 2019), cert. denied, No. 18-1516, 2020 WL 3578739 (U.S. July 2,
2020).
306 Id.
307 Id. at 1119.
308 Id. at 1110 (citing Hill v. Colorado, 530 U.S. 703 (2000)).
309 Id. at 1111–19.
310 Id. at 1119.
311 See, e.g., Sarah McCammon, A Look at Amy Coney Barrett’s Record on Abortion Rights, NPR (Sept. 28, 2020),
https://www.npr.org/2020/09/28/917827735/a-look-at-amy-coney-barretts-record-on-abortion-rights (interviewing two
commentators with different perspectives on what Judge Barrett’s “record” in abortion cases signals about how she
might rule in abortion cases if confirmed to the Supreme Court).
312 Planned Parenthood of Ind. & Ky., Inc., 949 F.3d at 999 (Kanne, J., dissenting) (Barrett, J., joining dissent).
313 Price v. Chicago, 915 F.3d 1107, 1119 (7th Cir. 2019), cert. denied, No. 18-1516, 2020 WL 3578739 (U.S. July 2,
2020).
314 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782 (2019) (per curiam).
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Civil Procedure315
The Supreme Court routinely decides cases involving questions of federal court jurisdiction (the
power of federal courts to decide cases) and civil procedure (the statutes and rules governing
whether and how cases are litigated in federal court). In recent years, many of these decisions
have been unanimous, or near-unanimous.316 But in that period the Court has also closely divided
on certain questions,317 including in ways that perhaps do not align with a conventional view of
the Court’s 5-4 decisions.318 In those recent cases where the Court was closely divided, Justice
Ginsburg was sometimes part of the majority and other times joined the dissent. From the
perspective of a potential party to federal court litigation, the Court’s decisions on whether and
how a federal court may adjudicate a case can be as important as the Court’s cases addressing that
party’s substantive rights or obligations.
Judge Barrett’s judicial writings have addressed federal court jurisdiction and civil procedure
issues.319 Many of these decisions involve fairly routine procedural matters,320 but a few cases
involve emerging legal issues of possible interest to Congress. While the cases provide a small
315 CRS Legislative Attorney Sean M. Stiff authored this section of the report.
316 See, e.g., Fort Bend Cnty., Tex. v. Davis, 139 S. Ct. 1843, 1846 (2019) (unanimous) (holding that if not timely
raised, an employer may forfeit the argument that a plaintiff’s claim under Title VII of the Civil Rights Act of 1964
should be dismissed because, before filing suit, the plaintiff did not file a charge with the Equal Employment
Opportunity Commission as the charge-filing requirement is a claim-processing rule only); Frank v. Gaos, 139 S. Ct.
1041, 1046 (2019) (per curiam) (eight-Justice majority remanding to court of appeals to address constitutional standing
questions); Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 715 (2019) (unanimous) (deciding that the 14-day deadline
for petitioning a court of appeals for permission to appeal a district court’s class certification order is not subject to
equitable tolling); New Prime Inc. v. Oliveira, 139 S. Ct. 532, 537, 539 (2019) (seven-Justice majority; Kavanaugh, J.,
not participating) (explaining that federal courts and not arbitrators should decide whether the FAA’s exemption for
workers engaged in interstate commerce applies to a given plaintiff and, further, whether the exemption includes
independent contractors as well as employees); Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529
(2019) (unanimous) (holding that when “the parties’ contract delegates . . . to an arbitrator” the question of whether an
arbitration provision applies to a particular dispute, “a court may not override the contract” even if the court believes an
argument that a dispute is arbitrable is wholly groundless).
317 See, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1419 (2019) (majority opinion of Roberts, C.J., joined by
Thomas, Alito, Gorsuch, and Kavanaugh, JJ.) (“Courts may not infer from an ambiguous agreement that parties have
consented to arbitrate on a classwide basis.”).
318 See Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1747–51 (2019) (majority opinion of Thomas, J., joined
by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (holding that a third-party counterclaim defendant may not remove a
case to federal court under either the general removal statute or the Class Action Fairness Act).
319 Judge Barrett’s academic writings address these issues as well. See, e.g., Amy Coney Barrett, Procedural Common
Law, 94 VA. L. REV. 813 (2008) (examining the existence and theoretical underpinnings of judge-made rules that are
concerned with regulation of internal court processes and not substantive rights); Amy Coney Barrett, Federal
Jurisdiction, in 2 ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES 193–96 (David S. Tanenhaus ed.,
2008) (providing an overview of the Supreme Court’s jurisdiction and that of the lower courts); Barrett, The
Supervisory Power of the Supreme Court, supra note 166, passim (examining the Supreme Court’s claimed inherent
authority to regulate inferior court procedure).
320 See, e.g., Shakman v. Clerk of Cir. Ct. of Cook Cnty., 969 F.3d 810, 813–14 (7th Cir. 2020) (dismissing appeal of
magistrate judge’s order filed by entity that was not a party to the district court litigation); Lexington Ins. Co. v. Hotai
Ins. Co., 938 F.3d 874, 884 (7th Cir. 2019) (affirming district court order dismissing complaint for lack of personal
jurisdiction); Carter v. City of Alton, 922 F.3d 824, 826 (7th Cir. 2019) (vacating district court dismissal of complaint
with prejudice following plaintiff’s motion for voluntary dismissal without prejudice as the district court erred in not
first allowing the plaintiff an opportunity to withdraw her voluntary dismissal request as required by Seventh Circuit
precedent).
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sample size, they are nonetheless potentially relevant indicators of Judge Barrett’s general
approach in this area.
One core jurisdictional issue is standing, which the Supreme Court has described as the
“irreducible constitutional minimum” that ensures courts hear only those disputes that are
“appropriately resolved through the judicial process.”321 To maintain suit in federal court, a
plaintiff must, among other things, point to the invasion of a legally protected interest that is
concrete and particularized.322 Congress may not eliminate this constitutional concrete injury
requirement, but the Supreme Court has recognized Congress’s power to “define injuries . . . that
will give rise to a case or controversy where none existed before.”323 This power is not
unbounded, and a statutory cause of action does not automatically carry with it Article III
standing. A plaintiff may not, for example, sue for a “bare procedural violation” of a statute.324
Judge Barrett’s rulings address both aspects of the concreteness inquiry. Writing for the court in
Gadelhak v. AT&T Services, Inc., the nominee explained that a plaintiff may suffer a concrete
injury by receiving unwanted text messages, even though that harm was not actionable at
common law.325 Congress authorized a statutory damages remedy, and the receipt of unwanted
text messages was sufficiently analogous to other types of “intrusive invasion of privacy” for
which the common law provided a remedy.326 In so deciding, Judge Barrett disagreed with an
Eleventh Circuit decision that found a lack of concrete harm in similar circumstances partly
because the common law would have required a “much more substantial imposition” than a few
unwanted texts.327 According to the nominee, however, the Eleventh Circuit’s view understated
Congress’s authority: “while the common law offers guidance, it does not stake out the limits of
Congress’s power to identify harms deserving a remedy.”328
On the other hand, in Casillas v. Madison Avenue Associates, Inc., Judge Barrett considered a
claim that a debt collector failed to follow a statutory command to tell debtors that rights to verify
and dispute debts had to be invoked in writing.329 In a unanimous panel opinion that drew an
unsuccessful call for en banc consideration,330 the nominee affirmed the district court’s dismissal
for lack of standing.331 Judge Barrett stated that the omission could put consumers who sought to
321 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
322 Id.
323 Id. at 580 (Kennedy, J., concurring in part and concurring in the judgment) (quoted with approval in Massachusetts
v. EPA, 549 U.S. 497, 516 (2007)).
324 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (“Article III standing requires a concrete injury even in the
context of a statutory violation.”); see also id. at 1550 (faulting the court of appeals for not considering in its standing
analysis whether alleged violations of a credit report statute involved a material risk of harm that the defendant would
distribute false information about the plaintiff).
325 950 F.3d 458, 462–63 (7th Cir. 2020) (explaining that a “few unwanted automated text messages may be too minor
an annoyance to be actionable at common law”).
326 Id. (stating that unwanted text messages “pose the same kind of harm that common law courts recognize—a
concrete harm that Congress has chosen to make legally cognizable”).
327 Id. at 462 (“The Eleventh Circuit treated the injury . . . as abstract partly because common law courts generally
require a much more substantial imposition—typically, many calls—to support liability for intrusion upon seclusion.”).
328 Id. at 463.
329 926 F.3d 329, 332 (7th Cir. 2019).
330 Id. at 340–42 (Wood, C.J., dissenting from denial of rehearing en banc) (stating that the panel opinion showed the
“need for a clear test in this circuit” to distinguish between “bare procedural injuries” and those injuries that can
support Article III standing, and faulting the panel opinion for applying a too-demanding pleading standard to review
the complaint).
331 Id. at 339 (panel opinion).
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dispute their debts at risk of waiving a statutory right.332 But the problem for the plaintiffs was
that they themselves alleged no risk; they expressed no plans to dispute their debts.333 Absent
such allegations, the nominee concluded, the plaintiff had only “caught the defendant in a
mistake, but it was not one that hurt her.”334 As Judge Barrett noted, Casillas conflicts with the
Sixth Circuit’s decision in Macy v. GC Services Limited Partnership,335 which considered
violations of the same in-writing requirement.336 Since the Seventh Circuit decided Casillas,
however, the Eleventh Circuit has aligned itself with Casillas.337 Judge Barrett’s opinions thus
indicate a willingness to recognize concrete harms where none existed before, but also an
approach to assessing whether risks of harm accompany violations of procedural requirements
that is more stringent than the approach that other judges have applied or would have applied.
Judge Barrett has also contributed to a developing body of case law examining whether a court
may compel segments of the gig economy to submit disputes to arbitration rather than to
litigation. As a general matter, the Federal Arbitration Act (FAA) requires courts to enforce
arbitration agreements “rigorously.”338 But as Section 1 of the FAA clarifies, the Act does not
apply to the “contracts of employment of seamen, railroad employees, or any other class of
workers engaged in foreign or interstate commerce.”339 In 2001, the Supreme Court explained
that the Section 1 exemption applied only to “contracts of employment of transportation
workers.”340 Subsequent cases have grappled with whether particular classes of employees are
“transportation workers” within the meaning of Section 1 and the Court’s precedent.
In Wallace v. Grubhub Holdings, Inc., Judge Barrett confronted this question as to food delivery
drivers operating on the Grubhub app.341 The nominee explained that to fit within the Section 1
exemption, the drivers had to show they were part of “a class of workers actively engaged in the
movement of goods across interstate lines.”342 And to “determine whether a class of workers
meets that definition, we consider whether the interstate movement of goods is a central part of
the class members’ job description.”343 The drivers did not meet this test, according to Judge
Barrett, because they rested their Section 1 exemption argument on having carried goods that had
moved across state lines, which the panel held insufficient.344 Those examining Wallace have
debated its precise holding.345 Other circuits have provided their own view of the Section 1
332 Id. at 336.
333 Id.
334 Id. at 339.
335 Macy v. GC Servs. Ltd. P’ship 897 F.3d 747 (6th Cir. 2019).
336 Casillas, 926 F.3d at 336 (critiquing Macy for not requiring “plaintiffs to allege a risk of harm to themselves”).
337 Trichell v. Midland Credit Mgmt. Co., 964 F.3d 990, 1001–02 (11th Cir. 2020) (characterizing the Seventh Circuit’s
approach in Casillas and the D.C. Circuit’s approach in Frank v. Autovest, LLC, 961 F.3d 1185, 1190 (D.C. Cir. 2020),
as “more faithful” to the Article III standing requirement than the Sixth Circuit’s approach in Macy).
338 Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018) (Gorsuch, J.).
339 9 U.S.C. § 1.
340 Circuit City Stores v. Adams, 532 U.S. 105, 119 (2001).
341 970 F.3d 798, 799 (7th Cir. 2020).
342 Id. at 802.
343 Id. at 801–02 (offering, as contrasting examples, “interstate truckers [who] are plainly transportation workers” and
furniture salespeople who are not “transportation workers” even if they might occasionally deliver furniture to
customers).
344 Id. at 802; see also id. (“[T]o fall within the exemption, the workers must be connected not simply to the goods, but
to the act of moving those goods across state or national borders.”).
345 Compare Rittman v. Amazon.com, Inc., 971 F.3d 904, 916–17 & n.6 (9th Cir. 2020) (considering the status of “last
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exemption standard in cases involving gig economy workers.346 Though the Seventh Circuit’s
statement of the standard differs from these other circuits, in this rapidly developing area of law347
it is unclear whether the exemption claim of a given class of employees would be resolved
differently if one circuit’s standard were to apply over another’s.
Civil Rights348
Justice Ginsburg cast a key vote in numerous civil rights cases, particularly in cases involving
discrimination based on gender and sexual orientation.349 Throughout her time on the Court,
Justice Ginsburg frequently adopted a broad interpretation of the federal government’s ability to
prevent and remedy discrimination. For instance, three years after joining the Court, Justice
Ginsburg wrote the majority opinion in United States v. Virginia, ruling that the Virginia Military
Institute violated the Fourteenth Amendment’s Equal Protection Clause by refusing to admit
women.350 This past term, in Bostock v. Clayton County, she joined the Court’s majority in
construing the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 (Title
VII)351 to cover discrimination based on sexual orientation or gender identity.352 If confirmed to
succeed Justice Ginsburg, Judge Barrett could be pivotal in shaping the Court’s civil rights
mile” delivery drivers for Amazon.com) (distinguishing Wallace as involving locally prepared food delivered locally
and stating that Wallace “did not adopt the dissent’s proposed interpretation[] that workers must actually cross state
lines to be considered ‘engaged in interstate commerce’”), with id. at 928 (Bress, J., dissenting) (“My interpretation of
the FAA aligns with the recent decision in Wallace” where “the Seventh Circuit held that to fall within the exemption,
the workers must be connected not simply to the goods, but to the act of moving those goods across state or national
borders.” (quotation marks omitted)).
346 See, e.g., id. at 915 (“[W]e conclude that [9 U.S.C. § 1] exempts transportation workers who are engaged in the
movement of goods in interstate commerce, even if they do not cross state lines.”); Waithaka v. Amazon.com, Inc., 966
F.3d 10, 23 (1st Cir. 2020) (holding that delivery drivers who “haul goods on the final legs of interstate journeys” fit
within the exemption “regardless of whether the workers themselves physically cross state lines”); Singh v. Uber
Techs. Inc., 939 F.3d 210, 226 (3d Cir. 2019) (remanding to the district court to consider whether plaintiff rideshare
drivers belong to a “class of transportation workers . . . engaged in interstate commerce or sufficiently related work”).
On one court’s reading, the “critical factor” in the recent cases is the nature of their employer’s business. In re Grice,
No. 20-70780, 2020 WL 5268941, at *3 (9th Cir. Sept. 4, 2020) (surveying case law and arguing that the “critical
factor” in each case is “not the nature of the item transported in interstate commerce (people or goods) or whether the
plaintiffs themselves crossed state lines, but rather the nature of the business for which a class of worker performed
their activities”; and denying mandamus relief to set aside district court decision holding that rideshare drivers did not
fit the residual category because no controlling precedent forbade the district court’s finding (internal quotation marks
omitted)).
347 The First, Seventh, and Ninth Circuits articulated their standards within the span of just over one month. See
Rittman, 971 F.3d at 921 (9th Circuit) (decided Aug. 19, 2020); Wallace, 970 F.3d at 803 (7th Circuit) (decided Aug. 4,
2020); Waithaka, 966 F.3d at 35 (1st Circuit) (decided July 17, 2020).
348 CRS Legislative Attorney Joanna R. Lampe authored this section of the report.
349 Justice Ginsburg also wrote influential dissents in several civil rights cases. For example, in Shelby County v.
Holder, 570 U.S. 529 (2013), she dissented from a Supreme Court decision striking down portions of the Voting Rights
Act of 1965. And in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), she dissented from a decision
imposing strict statute-of-limitations constraints on claims of race and gender pay discrimination under Title VII of the
Civil Rights Act of 1964. Congress later legislatively overruled Ledbetter by enacting the Lilly Ledbetter Fair Pay Act
of 2009, Pub L. No. 111-2, 123 Stat. 5 (2009).
350 518 U.S. 515, 519 (1996).
351 42 U.S.C. § 2000e-2.
352 140 S. Ct. 1731, 1737 (2020). See also Babb v. Wilkie, 140 S. Ct. 1168, 1171 (2020) (Alito, J.) (Ginsburg, J.,
joining majority opinion) (holding that the federal-sector provision of the Age Discrimination in Employment Act
demands that federal personnel actions be untainted by any consideration of age).
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jurisprudence. However, Judge Barrett’s record on civil rights law is limited, making it difficult to
assess how she might vote in future civil rights matters.
Civil rights cases may arise either under various federal statutes or under constitutional
provisions, typically the Fourteenth or Fifth Amendments.353 Judge Barrett’s approach to
analyzing constitutional civil rights claims is particularly difficult to discern given her limited
participation in equal protection cases.354 That is, the nominee’s most significant civil rights cases
have involved federal statutory claims. For example, in Doe v. Purdue University, Judge Barrett
authored a unanimous opinion ruling that a male university student pleaded sufficient facts to
pursue claims that the university violated Title IX of the Education Amendments of 1972 (Title
IX)355 and infringed his right to due process under the Fourteenth Amendment by suspending him
for “sexual violence.”356 Judge Barrett held that the district court erred in dismissing the student’s
due process claim because he “adequately claimed that Purdue used fundamentally unfair
procedures in determining his guilt” by, among other things, imposing a lengthy disciplinary
suspension without disclosing the full evidence against him.357 She further wrote that the
student’s Title IX claim was wrongly dismissed because, taken together, his “allegations raise a
plausible inference that he was denied an educational benefit on the basis of his sex.”358
In another case, Smith v. Rosebud Farm, Inc., Judge Barrett wrote a unanimous opinion ruling in
favor of a male grocery store employee who brought a Title VII claim based on sexual harassment
by his male colleagues.359 Judge Barrett cited Justice Scalia’s unanim
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