The Corner

Law & the Courts

What Would Be Unique about Justice Amy Coney Barrett

Judge Amy Coney Barrett offers remarks after being nominated to the Supreme Court at the White House, Washington, D.C., September 26, 2020. (Carlos Barria/Reuters)

The nomination of Amy Coney Barrett for the Supreme Court is a milestone in a number of ways. It would, if she is confirmed, plausibly give conservative, constitutionalist Justices a 6-3 majority on the Court for the first time since at least the 1930s, and move the center of gravity on the Court away from Chief Justice Roberts — a major swing, given that just two years ago, Justice Anthony Kennedy was still the deciding vote in many of the Court’s hot-button cases.

She would also be the first conservative academic on the Court since Justice Scalia, for whom she clerked, and whose judicial philosophy she again publicly embraced in her Rose Garden remarks today. Coming from Notre Dame Law School and Rhodes College, she would break the monopoly of the Ivy League on the current Court, but do so as a woman who spent nearly two decades as a full-time law professor. While Justices Kagan and Breyer were academics, too, the academic tilt of her résumé is somewhat unusual on the modern Court in not being balanced by experience in politics. Judge Barrett did not work in government before joining the bench, other than as a law clerk. By contrast, six of the eight current justices worked in the Justice Department in one capacity or another, and of the other two, Justice Thomas worked in the Education Department and the EEOC, and Justice Sotomayor worked for the Manhattan District Attorney’s Office and for various other agencies in state government. Justices Roberts and Kavanaugh also worked for the White House, and Justices Breyer and Kagan worked on Capitol Hill (in Kagan’s case, for Joe Biden). On balance, some diversity of professional experience on the Court is healthy — there is also one Justice (Sotomayor) who has worked as a trial judge, one (Thomas) who has worked in a corporate legal department, and two (Alito and Breyer) who have served in the military.

With three years under her belt on the Seventh Circuit, Judge Barrett has already spent more time on the bench than Chief Justice Roberts, Justice Thomas, or multiple past Justices. Justice Kagan, who was Dean of Harvard Law School, never served as a judge.

Generationally, Judge Barrett would be the first Justice born in the 1970s. This is an unusually young Court, as Justice Breyer is now the only Justice older than 72. Justice Gorsuch was born in 1967, Justice Kavanaugh in 1965. As a Justice, Barrett would also, as President Trump noted, become the first mother of school-age children ever on the Court, with seven children between the ages of eight and 19. In fact, she would be the only mother on the current Court, as Justice Kagan is single, Justice Sotomayor is divorced, and both are childless. If Judge Barrett, as expected, rules — as any judge with a decent respect for the written Constitution should — against Roe v. Wade, that would make her the first anti-Roe woman to sit on the Court (Roe, of course, was originally handed down by seven men).

Judge Barrett would inherit a distinguished seat on the Court from Ruth Bader Ginsburg. Justice Ginsburg’s predecessors included Noah Swayne, the first Republican on the Court; Stanley Matthews, who wrote the landmark opinion in Yick Wo v. Hopkins against laws that are enforced in a discriminatory manner (in Yick Wo, against Chinese immigrants); George Sutherland, a resolute anti-New Deal conservative who wrote several landmark majority opinions on a variety of topics; Robert McLean, who was one of the two dissenters in Dred Scott; David Brewer, who but for a death in the family would likely have been one of two dissenters in Plessy v. Ferguson; and Byron White, who was one of two dissenters in Roe. One hopes that, as Justice Barrett, she will have more company when she takes a righteous stand than did some of her predecessors.

This article has been corrected. It previously referred incorrectly to Thurgood Marshall having served two years, rather than four, on the Second Circuit. 

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