Supreme Court

SCOTUS Shortlister Amy Coney Barrett on Overturning Precedent and Judicial Deference to Lawmakers

Reviewing the record of a possible replacement for Justice Anthony Kennedy.



Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit is reportedly among a handful of finalists under consideration by President Donald Trump to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court.

Barrett, 46, was confirmed to the 7th Circuit last October after undergoing a highly contentious confirmation hearing before the Senate Judiciary Committee. A committed Catholic who has written frequently about the intersection of faith and law, Barrett was questioned by Sen. Diane Feinstein (D-Calif.) about whether her religion would prevent her from serving as an impartial jurist. "The dogma lives loudly within you, and that's of concern when you come to big issues that people have fought for for years in this country," Feinstein said to the nominee.

Feinstein was undoubtedly referring to Roe v. Wade, the 1973 ruling that recognized a constitutional right to abortion. The senator's implication was that Barrett's religious views might lead her to limit or even overturn that decision.

Before her judicial appointment last year, Barrett was a distinguished law professor at Notre Dame University, where she produced a highly respected body of scholarly work. Because of her short tenure on the federal bench, that scholarship offers perhaps the best indication of what sort of Supreme Court justice she might turn out to be.

Consider her writings on the crucial issue of precedent. When is it appropriate for the Supreme Court to overturn one of its own prior rulings? And is it ever appropriate for the Court to overturn a precedent simply because a new majority disagrees with the methodological approach of its predecessor? In other words, would it be appropriate for a living constitutionalist Court to overturn a case like District of Columbia v. Heller because the later Court disagreed with the Heller majority's originalist methodology?

Barrett grappled with such questions in a 2013 Texas Law Review article. In it, she sketched out and defended an approach that she called "weak" or "soft stare decisis." Given the competing interpretive methodologies on the Court, she argued, "a more relaxed form of constitutional stare decisis is both inevitable and probably desirable, at least in those cases in which methodologies clash."

"Were there greater agreement about the nature of the Constitution—for example, whether it is originalist or evolving—we might expect to see greater (although of course still imperfect) stability," Barrett wrote. "In the world we live in, however, that level of stability is more than we have experienced or should expect in particularly divisive areas of constitutional law." Reversing precedent "because of honest jurisprudential disagreement," she concluded, "is illegitimate only if it is done without adequate consideration of, and due deference to, the arguments in favor of letting the precedent stand."

As for her own approach, she 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 Constitution rather than a precedent she thinks clearly in conflict with it."

Barrett's writings also reveal her to be a sharp critic of the libertarian legal movement. In a 2017 article for Constitutional Commentary, Barrett acknowledged that libertarian legal scholars such as Georgetown's Randy Barnett have a point when they fault conservatives for placing too much emphasis on the notion of judicial restraint. "Deference to a democratic majority should not supersede a judge's duty to apply clear text," she wrote.

But Barrett then suggested that the libertarian legal movement has gone too far in the opposite direction by embracing a sweeping theory of economic liberty that is itself unmoored from constitutional text. What is more, Barrett defended the Supreme Court's current approach in cases dealing with economic regulation, in which the scales are tipped in favor of lawmakers via the highly permissive standard of judicial review known as the rational-basis test. "Deferential judicial review of run-of-the-mill legislation," Barrett wrote, is defensible on the grounds that such judicial deference "is consistent with the reality that the harm inflicted by the Supreme Court's erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute."

Notably, that view not only places Barrett in conflict with the libertarian legal movement, but it also places her in conflict with another possible SCOTUS finalist: Judge Don Willett, who appeared on Trump's original SCOTUS shortlist and was rumored to be among the finalists under consideration to replace Justice Antonin Scalia. Willett is considered to be in the running yet again for Kennedy's seat.

In 2015, while serving as a justice on the Texas Supreme Court, Willett (who is now a federal appellate court judge) concurred in the case of Patel v. Texas Department of Licensing and Regulation. Willett's opinion laid out an explicitly constitutional case for the judicial recognition and protection of economic liberty. (Willett favorably cited my book, Overruled, in this opinion.)

"The Fourteenth Amendment's legislative record," Willett pointed out, "is replete with indications that 'privileges or immunities' encompassed the right to earn a living free from unreasonable government intrusion." To say the least, Willett displayed little patience for what Barrett has defended as "deferential judicial review of run-of-the-mill legislation."

If Amy Coney Barrett gets the nomination to replace Justice Anthony Kennedy, I look forward to the Senate Judiciary Committee questioning her about these fundamental matters of legal theory and constitutional interpretation.