Justice Amy Coney Barrett has recently been confirmed to the U.S. Supreme Court and will likely have a profound impact on Constitutional law for years to come. Prior to being confirmed to the Supreme Court, she served as a judge on the 7th Circuit federal court, was a former Notre Dame law professor and former clerk to the late Supreme Court Justice Antonin Scalia.
She was nominated by President Donald Trump to fill the vacancy on the U.S. Supreme Court left by the death of the late Justice Ruth Bader Ginsburg. Justice Ginsburg was a liberal jurisprudential icon and the addition of Justice Barrett will likely shift the court in a more conservative constitutionalist direction. In this piece we reflect on Justice Barrett’s philosophy and consider a couple of her articles that she wrote as a law professor and a key opinion as a federal judge that gathered attention during her confirmation hearings.
The scholarly articles we will focus on are Precedent and Jurisprudential Disagreement and Congressional Originalism. In these works, she clearly demonstrates a respect for precedential value of prior court decisions, but would not shy away from revisiting them when the correct opportunities arose. She also clearly articulates in her works the distinct roles of the judiciary and legislature when assessing Constitutional issues and the distinct responsibilities of both branches when considering the value of precedent.
The decision we will focus on is her dissenting opinion in Kanter v. Barr which drew a lot of attention during her confirmation hearings. Much like her mentor Justice Scalia, in this opinion she provided an assessment that carefully considered the role of history.
In Precedent and Jurisprudential Disagreement, Barrett focuses on an assessment of stare decisis (the method of interpretation of adhering to prior precedent) and how judges should properly consider it in cases and its limits. She opens by explaining that Constitutional cases are more subject to a close stare decisis analysis that could lead to re-contemplating precedent than statutory matters where the concentration is interpreting statutes passed by Congress.
A goal of stare decisis is to resolve jurisprudential disagreements. A decision to overrule precedent, however, does not come lightly. From Judge Barrett’s view, there is a burden on those willing to overturn precedent to make a compelling and comprehensive case justifying the reasoning. An ideal view does not allow for disruptive action in Constitutional law just by a new majority without thoroughly vetted consideration. Reliance interests must be one of the factors in the decision-making process and requires reflection on the present societal and institutional investment in the prior decisions. A judge should strive to obtain a special justification if so persuaded to challenge the precedent. If there is material uncertainty within the decision-making process on whether to overturn the decision, maintaining the present standard would be the optimal position. She acknowledges, however, that a less extreme approach would focus on choosing to not extend precedent rather than overturning it. This is a more narrow and less controversial view. Naturally, the line of law then would no longer present the dominant standard to facilitate the adjudication of the area.
Judge Barrett is skeptical of the argument, however, that if the decision is made to overrule precedent, it affects the Court’s actual legitimacy. She states:
“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.”
She does add, however, that consistent upheaval in the law would not be optimal, thus the emphasis on special justifications for challenging precedent. She also cites to our historical understanding of the Supreme Court in that overturning prior decisions is not “out-of-bounds”, but the decision to proceed in that matter can be categorized as “exceptional”.
Overall, when reflecting on Judge Barrett’s view on stare-decisis she takes a tempered, but realistic approach. While she acknowledges that the doctrine presents a compelling factor in Constitutional interpretation and circumstances are limited in which prior decisions should be overturned, she does not totally discount overturning prior decisions. For Judge Barrett, there must be comprehensive support for making this decision after deftly balancing reliance interests with the judge’s chosen method of Constitutional interpretation. A special justification may in fact be present in the appropriate situation and this is consistent with our understanding of the practice of the Supreme Court. Unlike what has been portrayed in some commentary outlets, this is very much a mainstream and respectable way of judging.
In Congressional Originalism, Judge Barrett discusses the interpretative theory of originalism and how it is considered by Congress when crafting policy and law. Judge Barrett begins by reflecting on the current meaning and application of the theory. The current interpretive style of originalism focuses on the original public meaning. It would require an assessment emphasizing the textual meaning at the time of ratification as a whole, broader than simply the intent of the framers. There is a concentration on historical context in helping to understand how the law should be interpreted today. Judge Barrett devotes the piece on considering whether legislators in Congress are bound to this interpretative style when passing laws and crafting policy or whether it is something only within the purview of the judicial branch.
Discussion is then provided on the concept of “super precedent” Supreme Court decisions and how Congress should handle them. You may recall this was a common topic during her senate confirmation hearings following her nomination to the U.S. Supreme Court. The defining qualities of super precedents are discussed and an evaluation as to the obligation of the legislators to uphold them or pass laws circumventing them is considered. Super precedents are classified as Supreme Court decisions invoking foundational doctrine and practice that have withstood the test of time. Judge Barrett categorizes them under five characteristics: (1) endurance over time, (2) support by political institutions, (3) influence over constitutional doctrine, (4) widespread social acquiescence, and (5) widespread judicial agreement that they are no longer worth revisiting.
Among the cases that Judge Barrett cited as falling under this standard are Marbury v. Madison, Brown v. Board of Education and the Civil Rights cases. These decisions have become a major component of the fabric of the law and have wide acceptance among the people of this nation. These cases will likely never be challenged and resurface on the Court’s agenda. Focused briefing is required for petitions to the Supreme Court and the Supreme Court has the authority to grant or deny certiorari based on the legal questions presented in a given petition. This undoubtedly presents a thorough filter that will maintain the super precedent. This is the core of how super precedent remains intact, not simply relying on the nature of a stare decisis assessment in the general sense of committing to blindly maintain precedent.
In terms of Congress, legislators can avoid passing laws that would entangle with super precedent by maintaining the presumption that the precedent is constitutional. Judge Barrett was careful to point out, however, that this does not mean the legislature classifies the precedent as an absolute, but rather it is settled in the sense of not requiring policy to address it. While Congress has the authority to reexamine them, by no means are they obligated to or in the case of super precedent, inclined to do so. The super precedent may in fact be contrary to the original meaning and failing to correct it, however, does not necessarily mean that the originalist legislator is in agreement with the flawed interpretation.
As a practical matter an attempt to reconsider, while possible is simply impractical given the circumstances. Just as the Supreme Court would only reconsider in response to a litigant’s petition, so too would Congress be likely to reconsider if pressured by the electorate. The nature of the issues are settled by a vast swath of electorate in cases of super precedent so pressure is unlikely. Judge Barrett, however, makes an able comparison- the judiciary and Congress can be moved (or not moved) by the people. It just depends in what form – whether it is litigants in the context of the court of law or elections when selecting representatives in Congress.
Judge Barrett further explains that the judiciary and legislature are not required by the Constitution to correct every constitutional error that may arise. Congress by its very nature considers political interests when determining when to devote time to address alleged constitutional errors. Until the time arises, questions are deemed settled. This should not be construed, however, to conclude that Congress should be defying the Constitution, rather the central focus of the view holds that constitutional interpretations are subject to change and Congress has the autonomy to decide when to become entangled in the issues and perhaps apply the originalist view to the law-making process.
During Judge Barrett’s confirmation hearings, a great deal of focus drifted towards some of her opinions as a 7th Circuit judge. We will cover her dissent in Kanter v. Barr here. This one attracted significant attention during the hearings and concerned Second Amendment issues.
In Kanter v. Barr, Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341. In his business, he submitted foot inserts to Medicare for approval before sending them to podiatrists. They initially failed the approval process. Later, a new batch of inserts would be approved, however, Kanter had continued to sell the non-compliant inserts with marketing that they were Medicare approved. Kanter, however, had no history of any form of violent or domestic crimes.
Due to his felony conviction, he was prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case was whether the felon dispossession statutes— 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) —violated the Second Amendment as applied to Kanter. The 7thCircuit ruled that even if Kanter could bring an as-applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest.
Judge Barrett dissented and relied on historical assessments to support her view that there should be a categorization of felons when pursuing a means of depriving them of their enumerated rights. She articulates that Kanter’s status as a non-violent felon should have been persuasive and his conviction of mail fraud bears no relationship to a substantial government interest in curtailing gun violence. She proceeds to cite to historical text in the early colonies that showed laws meant to disarm or keep weapons out of the hands of dangerous criminals. The historical record is inconclusive on removing weapons from all felons just because of the nature of being broadly categorized as a felon.
These legislatures “intended to disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety.” Public safety interests were a primary concern for these legislatures. Judge Barrett concludes that “absent evidence that Kanter 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.”
Judge Barrett is also critical of the majority’s opinion that relied on statistics claiming convictions of nonviolent felons can predict future violence. The majority relied on this to help illustrate the state’s substantial government interest in stopping gun violence. The statistics, however, did not differentiate between the non-violent felons to provide a comprehensive assessment. For example, one could reasonably consider that a Medicaid fraud felon without a prior violent history could be treated differently than a drug felon with a history of domestic violence. It was not proven in the given facts that Kanter showed a propensity with his traits or any pattern of violence to justify being deprived of his Second Amendment rights.
Overall, in the Kanter matter, this dissent invoked memories of Justice Barrett’s mentor Justice Scalia in using a historical approach to advocate for a position. From a pragmatic standpoint, this dissent is very persuasive and looks to further assess the analysis in a fact-specific way by considering the comprehensive background of litigant Kanter. Justice Barrett presents a reasonable method to filter claims that could deprive convicted felons their enumerated Second Amendment rights. The intent is to restrict firearms access to dangerous felons, but we cannot fall into the trap of painting a broad brush in having government overstep its power. It is not necessary given the set of facts presented here of a non-violent felon that did not carry a violent history.
These works are a sample of insight into Justice Barrett’s jurisprudence. We can say, however, with relatively strong certainly that based on our analysis, Justice Barrett will be a judge that considers revisiting precedent from time to time if the right opportunity was presented before the Court. As part of her balancing test, however, she would consider reliance interests and take a fair, methodical and reasonable approach. Also much like her mentor Justice Scalia, she will use history and rely on original public meaning interpretation as tools to formulate her position.
As the Supreme Court presently stands- Justice Sotomayor, Justice Breyer and Justice Kagan are in the left of center camp with Sotomayor the farthest left. Chief Justice Roberts presently comprises the ideological center with having been a deciding factor in recent years in decisions that have benefited both the left and the right. Justice Gorsuch and Justice Kavanaugh, although currently early in their tenures are to the right of Roberts in that order based on a small sample size. Justice Gorsuch has sided with the left on various occasions such as issues dealing with Native America rights and sexual orientation as a protected class. Justice Alito is positioned to the right of Kavanaugh with the most consistent record from his longer tenure and Justice Thomas to the right of Alito. Justice Thomas has taken a far bolder approach to major issues even in dissents and concurrences. He has embraced Constitutionalism in its purest form.
An early prediction for Justice Barrett is that she will fall either in between Kavanaugh and Alito or perhaps even Alito and Thomas. She is an excellent asset to the Supreme Court and we look forward to watching her impact on the further development of Constitutional law in the years to come.
 Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013).
 Amy C. Barrett & John C. Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1 (2016).
 Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).