The Daily - The Past, Present and Future of Amy Coney Barrett

Episode Date: September 28, 2020

Judge Amy Coney Barrett, President Trump’s pick to fill the empty seat on the Supreme Court, is a product of the conservative legal movement of the 1980s. She clerked for Justice Antonin Scalia, a giant of conservative jurisprudence, and his influence is evident throughout her judicial career.Opponents of abortion, in particular, are hoping that her accession to the Supreme Court would be a crucial step forward for their movement.Her nomination ceremony in the Rose Garden this weekend appeared unremarkable. But it took place just weeks from a presidential election and barely eight days after the death of Justice Ruth Bader Ginsburg.Republicans have the votes in the Senate to confirm Judge Barrett and a timetable that suggests that they would be able to do so before Election Day. With her path seemingly clear, we reflect on Judge Barrett’s career and her judicial philosophy.Guest: Adam Liptak, who covers the Supreme Court for The New York Times.For more information on today’s episode, visit nytimes.com/thedaily Background reading: In choosing Judge Barrett, President Trump opted for the candidate most likely to thrill his conservative base and outrage his liberal opponents.Judge Barrett’s record suggests that she would push the Supreme Court to the right. Here’s a guide to her stance on abortion, health care, gun rights and the death penalty.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, with 36 days to go until the election, Amy Coney Barrett has been nominated as the next Supreme Court Justice of the United States, and President Trump and Senate Majority Leader Mitch McConnell have vowed to get her confirmed before Americans go to the polls. My colleague, Adam Liptak, on what it all means for the court and the future of American law.

It's Monday, September 28th. I stand before you today to fulfill one of my highest and most important duties under the United States Constitution, the nomination of a Supreme Court Justice. Adam, it has happened. And so I wonder if you can tell us about the announcement that was held over the weekend. So on Saturday, there was a ceremony at the Rose Garden at the White House that was in one sense ordinary. It was the announcement of a Supreme Court nominee, but in another sense, quite extraordinary, at least as a matter of timing. Over the past week, our nation has mourned the loss of a true American legend. Justice Ruth Bader Ginsburg was a legal giant and a pioneer for women.

It happened just eight days after the death of Justice Ruth Bader Ginsburg and just weeks before a presidential election. So you had the president trying to convey a kind of business-as-usual attitude, even as we're hurtling toward something very different from the ordinary Supreme Court nomination. And there is no one better to do that than Amy Coney Barrett. Thank you very much, Mr. President.

So President Trump introduces his nominee, Judge Amy Coney Barrett, and her husband and her seven children. Emma, Vivian, Tess, Judge Peter, Liam, Juliet, and Benjamin. Two of the children are adopted from Haiti. One has special needs. And that was a charming tableau at the White House and a reminder in part that Judge Barrett is only 48. And if confirmed, she'd be the youngest Supreme Court justice. Should I be confirmed, I will be mindful of who came before me.

She talked about Justice Ginsburg. Particularly poignant to me was her long and deep friendship with Justice Antonin Scalia, my own mentor. She talked about the friendship between Justice Ginsburg and Justice Antonin Scalia, for whom Judge Barrett had clerked. had clerked. These two great Americans demonstrated that arguments, even about matters of great consequence, need not destroy affection. And Judge Barrett wrapped up by saying that she wanted to be a justice for all of the American people. If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you and faithfully and impartially discharge my duties under the United States Constitution. Well, let's talk about what we do know about the kind of

justice that Judge Amy Coney Barrett would be. Tell us her story. So she was born and raised in New Orleans in a religious Catholic family, attended Rhodes College and Notre Dame Law School, had a stellar academic record. And although Notre Dame is not typically a feeder into judicial clerkships, she got a very high-profile judicial clerkship on the D.C. Circuit, the federal appeals court in Washington. And it was after that clerkship on the federal appeals court that she made the most important professional move of her life when she was hired for that clerkship with Justice Scalia. So she's now working at the Supreme Court. So tell us about working for Scalia.

It's the most prestigious credential in American law. Justice Scalia was a giant of conservative jurisprudence. He worked closely with his four law clerks, but everyone said Amy Coney was his favorite. And she then and now adopted his jurisprudential philosophies, ones that generally lead to conservative results and ones that were pioneered by Justice Scalia. What do you mean, pioneered? My fellow Americans, I've said on several occasions that I wouldn't comment about the… The conservative legal movement in the Reagan administration in the 80s was very frustrated by what it saw as the excesses of the Warren court. For my entire political life, I've spoken about the need for the Supreme Court to interpret the law, not make it. In taking what they said was a kind of freewheeling attitude toward the Constitution and finding or inventing rights in the Constitution for criminal defendants, for abortion. Too many theorists believe that the courts should save the country from the Constitution.

Well, I believe it's time to save the Constitution from them. And they needed a theory to constrain judges. During my presidency, I've proudly appointed two new justices who understand that important principle. Justice Sandra Day O'Connor and Justice Antonin Scalia. And the theory has two basic prongs. I am one of a small but hardy breed of interpretists left in the world who are called textualists or originalists. One is textualism, which is about federal statutes and means to read federal statutes according to their plain words.

People ask me, why? When did you become a textualist?, when did you become a textualist? What caused you to become a textualist? When did you begin eating human beings? As though it's some weird thing. When did you begin to become not a textualist? You have a text. You should read the text.

And then when you move to the Constitution, the restraining theory was called originalism. And originalism means to recover the original meaning of the Constitution as understood by the people who drafted and ratified it. We try to figure out what it meant when it was adopted. And there too, Scalia would say, if the Constitution doesn't speak to an issue, judges aren't meant to interpret it to find rights that didn't exist there. And the Warren Court had gone astray, he said. You want a right to an abortion? It's in there. You want a right to die? It's in there. Whatever is good and true and beautiful, never mind the text.

It's irrelevant. He would say the same thing about finding a right to same-sex marriage. He would say those are not things for judges to decide. Those are things for, in a democracy, the people to decide through their state legislatures. But his rationale for that was democracy, that this is the enacted text. It went through the process of ratification or a constitutional amendment to become a law. And if we change the law now to comport with our current understandings or what we want it to mean, then it ceased to be the law that has democratic legitimacy. mean that it ceased to be the law that has democratic legitimacy. So as a student and a disciple of Scalia's, Amy Coney Barrett is identified with this judicial approach, textualism, originalism. Very much so. And she talks about it at great length in her writings,

in her judicial opinions, and in her public appearances. So Justice Scalia resisted the notion that the Supreme Court should be in the business of imposing its views of social mores on the American people. He thought that things that the Constitution didn't declare off-limits were up to the people to decide. And so how do we see this play out in Amy Coney Barrett's career?

After the clerkship, she briefly practices at a prestigious Washington law firm, but she fairly quickly goes back to Notre Dame where she's a professor and a distinguished one, beloved by her students, winning all sorts of awards, and where she continues to work on these projects about the nature of originalism, the connection between originalism and precedent. And she comes to the attention of conservative legal groups, notably the Federalist Society, and to the Trump White House. And in 2017, President Trump nominates her to the Federal Appeals Court in Chicago,

the United States Court of Appeals for the Seventh Circuit, where she has now participated in hundreds of decisions. So I want to come back to this work that she did on the connection between originalism and precedent. But first, tell us about a case that she was involved in on the federal court, on the Seventh Circuit, that helps us understand how she applies Justice Scalia's philosophy? So a case that jumped out at me was one in which she dissented. It involved a guy named Ricky Cantor,

who got himself in some trouble for Medicaid fraud. He apparently was billing for shoe inserts that he wasn't supposed to be billing for. And he's convicted of a felony. Goes on to lead a blameless life and wants to get a gun. But there's a federal law and a Wisconsin law that says former felons are not allowed to carry guns. And he challenges these laws. And the court on which Judge Barrett sits, two to one, says the laws are fine.

The laws do not offend the Second Amendment. Judge Barrett decides she's going to have a hard look at the historical evidence. And she and her law clerks do what critics might call law office history. Real historians aren't particularly crazy about judges doing history. And comes to the conclusion that the founding generation had views about this and would allow restrictions, but only for violent felonies. Therefore, she would have allowed this guy to get a gun. And what's interesting about it is not so much the result, but her commitment to the methodology of trying

to unearth what is surely a difficult task of what was the view at the time about non-violent felonies like Medicaid fraud in, you know, a generation that would have no idea what you're talking about when you made that statement. So here you have Amy Coney Barrett applying this originalist approach. And it's interesting, Adam, because you talked about how this approach began as a response from conservatives to perceived liberal judicial activism. And justices looking for rights

that aren't actually in the Constitution, but going into historical documents to look for views that the founding fathers held that also aren't actually in the Constitution, that starts to feel like its own form of conservative judicial activism, right? Yeah, they're two different interpretive methodologies, to be sure, but there's something similar going on, I agree with you. So with all this in mind, Adam, how are you thinking about Amy Coney Barrett taking the seat of a woman who has spent her entire career as a pretty liberal

minded champion of women's rights and who is a supporter of abortion rights. But it sounds like you're also saying they just have literally opposite philosophical and legal approaches. So you have to take into account that Justice Ginsburg was a beloved icon. And there's something a little, I'm not sure what the word for it is, but superficial say for the notion that since she was a woman, she had to be replaced by a woman. And yet President Trump has said just about as much when on an earlier go round, he said he was saving Judge Barrett for the departure of Justice Ginsburg. It reminds you of the replacement of Justice Thurgood Marshall, who was in many ways like Justice Ginsburg. She was a litigator on behalf of women's rights, the greatest in our

history. He was a litigator on behalf of racial equality, the greatest in our history. And yet he's replaced by Justice Clarence Thomas, who is black, but is his ideological opposite. And we seem to be in a situation now where Justice Ginsburg is likely to be replaced by a woman, but also her ideological opposite. but also her ideological opposite. You're saying that it seems not at all to be a coincidence that in both cases, these judges who changed the course of history for Black Americans and for women were replaced by justices whose identities matched the justices whose seats they were filling.

But everything about their judicial philosophy was different. And their rulings on the court may end up undermining the very work that those justices' careers were about. It sure looks that way, doesn't it? We'll be right back. So Adam, let's turn to the next couple of weeks and what it might mean to have Judge Amy Coney Barrett on the high court. And just to get this out of the way, is there any reason to believe that she will not be confirmed? There's no reason to think she's not going to make it. I mean, something could come up, but at the moment the Republicans have the votes and the timetable looks like she can be confirmed before the election. and the timetable looks like she can be confirmed before the election.

Okay, so what will that mean for the makeup and the dynamics of the Supreme Court? So there's two ways to think about it, Michael. The first one is a little simpler, and that is if you put Judge Barrett on the ideological array on the court. You can imagine the court from left to right, from Sotomayor on the left to Thomas on the right. You plop her in, she's probably to the right of Gorsuch and Kavanaugh, and that makes Justice Kavanaugh, rather than Chief Justice Roberts, the justice at the ideological center of the court and who might be in some situations the swing justice on the court. Under this simple-minded theory, it moves the court slightly to the right. But there's a second way to think about it,

which is that it's a dynamic process and the Chief Justice is not going to lightly give up his ability to shape the court. And Chief Justice Roberts, as a consequence, although he has occasionally, and I stress very occasionally, joined what was a four-member liberal wing to create a majority for a liberal result, he can't do that anymore with a three-member liberal wing. If he goes with the three-member liberal wing, he will be in dissent in a 5-4 decision. That's not going to be attractive to him.

More attractive to him is to stay with his usual allies where he can use his distinctive power as chief justice to shape, maybe moderate, the results. So there's some reason to think, some substantial reason to shape, maybe moderate, the results. So there's some reason to think, some substantial reason to think, that adding Judge Barrett to the court will shift the chief justice slightly to the right. So you're saying the chief justice will be less inclined

to side with and work with the liberal justices because mathematically the question becomes, what's the point? But where does that leave the chief justice's determination, which you have described many times on the show, to have the Supreme Court be seen as an apolitical body by using his vote to sway the whole court? It would seem like he would inevitably have to kind of cede that role. Yeah, it would withdraw a tool from his toolbox, Yeah, it would withdraw a tool from his toolbox, and that will be frustrating to him.

If he wants to single-handedly show that the court is nonpartisan, apolitical, it's going to be harder for him to do that in this new configuration. Well, then let's talk about the issues that are most top of mind for Americans when it comes to what it will mean to have Amy Coney Barrett sitting on the Supreme Court. Then let's start, of course, with abortion. What can you tell us that will help us understand what to expect here once she's on the court? President Trump has vowed to put justices on the court who will overrule Roe. Opponents of abortion are very enthusiastic about Judge Barrett. They think she's a home run. There's zero question that she's personally opposed to abortion. I'm asking what your belief is about the effect of overturning Roe v. Wade. Would you agree with me that it would have a massive disruptive effect on the lives of countless Americans.

Well, Senator, I don't think I ought to express personal opinions for the reason why nominees have drawn that, for the same reason that nominees have given in the past. Though she hasn't directly said in public that she wants to overrule Roe. As you say, Roe has been affirmed many times and survived many challenges in the court. And it's more than 40 years old. And it's clearly binding on all courts of appeals.

And so it's not open to me or up to me. And I would have no interest in, as a court of appeals judge, challenging that precedent. It would bind. If it's true that she thinks, as Justice Scalia does, that the Constitution has nothing to say about abortion, the question you're left with is, does she think it's the sort of precedent that should not be overruled, even if she thinks it precedents, which are more open to being overruled than others, Roe is among those that's more open to be overruled because it's been so controversial for so long. Right. And this brings us back to you telling us that at Notre Dame, Amy Coney Barrett was writing about the relationship between originalism and precedent. Are you saying that what you just described is her view of that relationship, that there's a kind of hierarchy involved that makes some big cases more open to overruling?

Yes, I do think that. I think that she thinks that the Constitution is more important than judicial decisions. And I also think that she thinks that some precedents are less worthy of respect than others and that Roe falls into the less worthy of respect category. So for the many, many people for whom I imagine this will be the most pressing question on their minds and with this nominee, are you expecting that Roe v. Wade will be challenged in the near future? A future where presumably Amy Coney Barrett is on the bench? And if so, are you expecting that Barrett would vote to overturn it? I think the day will come, but not particularly soon, when the court is asked to confront the question of overruling Roe.

In the short term, I think the court is more likely to restrict and chip away at and hollow out the right to abortion and make it harder for women in red states to get abortions. Should the day come when the question is squarely posed to the court, and I think Chief Justice Roberts will do what he can to push that day back, I'd be very surprised if she did not vote to overrule Roe. Wow. I think, Adam, that the next big issue on people's minds is the Affordable Care Act, for which there's a case already before the court. And I know that that case involves the constitutionality of the individual mandate. What can we expect there with an Amy Coney Barrett as justice? Yeah, so that case will be argued a week after election day. If the current timetable holds, Judge Barrett will be on the court. She has been critical

of the 2012 decision, which upheld the constitutionality of the individual mandate, which upheld the constitutionality of the individual mandate, which required people to buy insurance or pay a penalty. Now, the new case involves different issues, and I don't think her vote is particularly predictable, and I don't think the court's outcome is particularly predictable. To be sure, if you still had Justice Ginsburg on the court, you would have the same five-justice coalition who

saved the individual mandate in 2012. But the question in the case is convoluted enough and kind of a stretch that I don't know that you won't have a lopsided majority, even of a conservative court, rejecting much of the latest challenge. of a conservative court rejecting much of the latest challenge. Finally, Adam, let's talk about the Supreme Court and the election itself. The president has said that if he loses in November, he may not accept the results. In fact, he may challenge them. What would it mean to find the United States in a Bush v. Gore-like situation where the Supreme Court is asked to weigh in

on the results of the 2020 election, perhaps decisively, with a new justice who is literally days old in the job and who was rushed through by the sitting president despite lots of opposition and despite polling that shows that a majority of Americans didn't think it should have happened on this timetable. So we don't know what the case would look like, what the legal issues would be. They could come from anywhere in the

nation. But I agree with you, Michael, that some election-related case is sadly likely to reach the Supreme Court. Wow. Here, I think most of the justices will join Chief Justice Roberts in really wanting to maintain the legitimacy of the Supreme Court and not hand a victory for political reasons to President Trump, who had just appointed a third justice to the court. So I think all Americans can be hopeful, and the Supreme Court will try hard, that that case, when it arises, will be decided on strictly legal grounds. Hmm.

But what you're saying is it's very conceivable that a justice just appointed by this president may be asked to vote as a justice on a case that could determine whether or not he stays president. At her confirmation hearing, Judge Barrett is certain to be asked whether she's going to recuse herself from such a case. The answer will be very interesting. I imagine she'll duck it. But there would be something a little odd about someone arriving at the court in these circumstances voting in a case of that significance.

Adam, how are you generally thinking about the historic nature of all this. You are a actual lawyer. You're a student of the Supreme Court. You have talked about the Warren Court, the conservative response to that, these various kind of cycles and eras in the history of the court. What does the nomination and the likely confirmation of Amy Coney Barrett mean to you?

I think it's terrible for the court. I think Justice Scalia's death shaped the last election and the Senate Republicans' refusal to even hold hearings for President Obama's nominee, Merrick Garland, was terrible for the court. I think this is terrible for the court. It's a real argument in favor of term limits or mandatory retirements. The fact that two elections in a row are being shaped by the untimely deaths of towering figures in American law just doesn't make any sense. And why is that? Why is this so terrible for the court? The court tries hard. Sometimes it fails. but it tries hard to make legal decisions, not partisan political decisions. And in order for it to maintain the respect of the American people, it needs to be seen that way.

And now in the coming weeks, we are going to be told over and over again, and not without reason, that the court is a political institution because of the way the Senate is going to treat this nomination. But Adam, hasn't that ship sailed? I mean, didn't that ship sail when Democrats treated Robert Bork the way they treated him? Didn't that ship sail when Clarence Thomas's hearings devolved into what they devolved into? Didn't that ship sail within the past few years when the Senate wouldn't even hear, as you said, a Democratic president's nominee? I mean, we've talked about this in the past. The court has become a politicized body

despite its best intentions. So is this just not the kind of logical conclusion of all that? I guess you're right, Michael. But only months ago at the end of the last term where the court did seem to have found its way into a balanced approach to many kinds of cases and its public approval ratings went up as a consequence and it tried to reclaim some of its legitimacy in the aftermath of the brutal Kavanaugh hearings. it may be that this is just another one of a series of blows to the court.

But this close to an election, in the face of what many people describe as rank hypocrisy among Republicans who took the opposite approach four years ago, it's just not good for the court. A provocative question, but should Amy Coney Barrett, should the court ask that we respect the majority of Americans and wait for the next president to proceed with this process? I don't think they're capable of doing that.

And I'm not sure that that itself doesn't have a political valence. and I'm not sure that that itself doesn't have a political valence. Judge Barrett will be asked how she feels about the rush, and I imagine she'll say, that's not my job, that's your job, Senate. You guys are in charge of the politics, I'm in charge of the law. You all have gotten us to where this all is. It's your problem. That's right. Yeah.

Well, Adam, thank you very much. We appreciate it. Thank you, Michael. Over the weekend, the chairman of the Senate Judiciary Committee, Lindsey Graham, said that confirmation hearings for Amy Coney Barrett will begin on October 12th. We'll be right back. We'll be right back. Here's what else you need to know today.

A Times investigation based on tax return data for the president and his businesses over two decades found that he paid just $750 in federal income taxes during the year that he won the presidency, and the same amount during his first year in the White House. The president, who has broken tradition and refused to disclose his taxes, paid no federal income tax in 10 of the past 15 years, mostly because his businesses reported losing more money than they made. On the New York Times story, though, you have to understand that when Americans read that you may have paid only a few hundred dollars in federal income tax per year, that seems very low for someone who's a billionaire. So how much? Well, basically, they're saying I paid nothing.

Can you give people an idea of how much you actually are paying? Yeah, basically. Well, first of all, I paid a lot, and I paid a lot of state income taxes, too. The New York state charges a lot, and I paid a lot of money in state. During a news conference on Sunday night, held minutes after the Times published its investigation, the president called the investigation fake news, but did not take issue with any specific details.

On tomorrow's show, I'll speak with the reporters who obtained the president's tax debt. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.