The idiosyncratic originalism of Amy Coney Barrett

Hundreds of thousands of words have already been written about the logistics of nominating a justice to replace the late Ruth Bader Ginsburg before this year's presidential election. Since it now appears that President Trump has the votes to secure such a confirmation, there are more relevant questions about the background of the eventual nominee. The frontrunner appears to be Amy Coney Barrett, a U.S. Appeals Court judge and longtime professor at the University of Notre Dame Law School.

Even more digital ink has been spilled since 2018 on the subject of Barrett herself, whose previous federal confirmation hearing was unusually contentious by the standards of such proceedings. Most of the commentary has fallen on predictably partisan lines, with both supporters and critics drawing attention to "Catholic Judges in Capital Cases," a law review article written in 1998 when Barrett was 26 years old. Both sides are almost certainly making too much of the supposed implications of a two-decade-old philosophical essay about the ethics of recusal.

I believe that Barrett's views on constitutional matters are worth considering for their own sake, and that in seeking to understand them we should look beyond her wide-ranging academic work to her two years as a sitting judge.

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A perusal of Barrett's time on the appeals court bench reveals several themes. One is that Barrett, while working from what are ostensibly the same originalist premises, tends to reach conclusions that are less deferential to law enforcement than many others in the conservative legal establishment. In 2018, she wrote a majority opinion arguing that police officers responding to reports of teenagers "playing with guns" in a parking lot did not have the authority to search a man's nearby vehicle (in which two firearms happened to be found) in the absence of any other evidence of wrongdoing. The following year she contemptuously dismissed a claim of qualified immunity by a police officer who had obtained an arrest warrant after producing an affidavit that she described as "riddled with lies." In another case from 2019, she showed not only her skepticism about the constitutionality of common police tactics but a keen wit when she began a majority opinion as follows:

Barrett's nuanced views on criminal justice have also made her a more principled defender of the Second Amendment. In 2019 she dissented in a case that upheld a ban on possession of firearms by non-violent felons in Wisconsin. "History is consistent with common sense: It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," she wrote. "But that power extends only to people who are dangerous." To this category she argued that a person convicted of mail fraud did not belong before wryly observing that in the past such blanket prohibitions had generally been applied by racist state legislatures to Black and Native Americans.

The overwhelming majority of commentary on Barrett has focused on abortion. In an article published in the Texas Law Review in 2018, she argued that unlike Brown v. Board of Education, Roe v. Wade is a not a " superprecedent" that the Supreme Court would never consider overturning and that abortion is simply not uncontested in the same sense as, for example, "the constitutionality of paper money." What have these views meant in practice on the federal bench so far? In 2019 she ruled against striking down an Indiana law that mandated the burial or cremation of aborted children, a statute that was later upheld by the Supreme Court. The same year she voted in favor of rehearing a case requiring minors seeking abortions to notify their parents, a case that is now being reconsidered at the behest of the high court. She also joined an opinion upholding a so-called "bubble zone" ordinance in Chicago that barred anti-abortion protesters from speaking to women outside of clinics on the grounds that, while the current jurisprudence surrounding the issue was incoherent, it was beyond the purview of appeals judges to iron out the Supreme Court's inconsistencies.

This more or less exhausts Barrett's record in cases with wide-ranging implications. Her other rulings have been narrow, if occasionally unpredictable. While she has often insisted upon deference to executive branch agencies and administrative law judges, she has indicated that she does not believe this should extend to making medical diagnoses from the bench. In a 2018 case, she broke with her colleagues in a case involving a murderer who claimed that his constitutional rights had been violated after a judge rejected his claim that he had been "provoked" into shooting his wife seven times. That year she also ruled in favor of a butcher who claimed that he had been sexually harassed by male colleagues.

What does Barrett's record on the federal bench suggest about her potential nomination to the Supreme Court? While it would be absurd to suggest that she would be in any sense a "moderate" or "swing" vote who would prevent the balance of the high court from shifting in the direction of a clear conservative majority, it would also not be accurate to dismiss her as a clone of Justice Clarence Thomas or even of her late mentor Antonin Scalia, for whom she clerked in the late '90s. Her vision of originalism is broader and more idiosyncratic. It is also more humane.