WASHINGTON – Judge Amy Coney Barrett, President Donald Trump's pick for the Supreme Court, has compiled an almost uniformly conservative voting record in cases touching on abortion, gun rights, discrimination and immigration. If she is confirmed, she would move the court slightly but firmly to the right, making compromise less likely and putting at risk the right to abortion established in Roe v. Wade.
Barrett's judicial opinions, based on a substantial sample of the hundreds of cases that she has considered in her three years on the federal appeals court in Chicago, are marked by care, clarity and a commitment to the interpretive methods used by Justice Antonin Scalia, the giant of conservative jurisprudence for whom she worked as a law clerk from 1998 to 1999. But while Scalia's methods occasionally drove him to liberal results, Barrett could be a different sort of justice.
"There may be fewer surprises from someone like her than there were from Justice Scalia," said Brian T. Fitzpatrick, a former law clerk to the justice. "She is sympathetic to Justice Scalia's methods, but I don't get the sense that she is going to be a philosophical leader on how those methods should be executed."
One area in which almost no one expects surprises is abortion. Trump has vowed to appoint justices ready to overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion. And Barrett's academic and judicial writings have been skeptical of broad interpretations of abortion rights.
Barrett will doubtless tell senators that the Roe decision is a settled precedent, as she did when Trump nominated her to the appeals court in 2017. But when the day comes, many of Barrett's supporters are convinced she will not flinch. Scalia wrote that the Constitution has nothing to say about abortion and that states should be allowed to decide the question themselves. There is no reason to believe Barrett disagrees.
In the coming months and years, the Supreme Court may be called upon to weigh issues as varied and weighty as the presidential election, the fate of affirmative action, the structure of the administrative state and the role courts can play in addressing climate change. Barrett had not written major opinions in any of those areas, but here is a look at her views on two other major issues.
On Nov. 10 the Supreme Court will hear arguments on the latest challenge to the Affordable Care Act. If Trump and Senate Republicans have their way, Barrett will be on the bench to hear the case.
In a 2017 law review article, Barrett was critical of Chief Justice John Roberts' 2012 opinion sustaining a central provision of the Affordable Care Act. "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," she wrote.
The new case was brought by Republican state officials, who argued that when Congress in 2017 zeroed out the penalty for failing to obtain health insurance, lawmakers doomed the entire law. Barrett's views on those arguments are unknown.
In a 2019 dissent, Barrett said she would have limited the sweep of a federal law forbidding people with felony convictions from owning guns. She drew on originalism, a legal theory championed by Scalia that seeks to interpret the Constitution as it was originally understood.
But she appeared to have gone further than her former mentor, the author of the 2008 majority opinion in District of Columbia v. Heller, which established an individual right to own guns for self-defense in the home. "Nothing in our opinion," Scalia wrote, "should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons."
In her dissent, Barrett wrote that the law forbidding people with felony convictions from owning guns should not apply when the crimes at issue were nonviolent.
"History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons," she wrote. "But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous."