Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Saturday, September 26, President Trump nominated Judge Amy Coney Barrett to fill the vacancy on the bench occasioned by the death of Justice Ruth Bader Ginsburg. Barrett, who sits on the U.S. Court of Appeals for the Seventh Circuit, has only served as a federal judge since 2017, so her judicial record is not extensive. Her academic writings and background, however, indicate strong conservative leanings. The confirmation process promises to be extremely contentious. If confirmed, Judge Barrett will solidify the Court's conservative majority conceivably for years to come, which will no doubt affect future labor and employment cases that make their way to the Supreme Court.
Judge Barrett, age 48, received her law degree from Notre Dame School of Law, where she graduated summa cum laude in 1997. Judge Barrett served as a law clerk with Judge Laurence Silberman of the D.C. Circuit from 1997-1998, which led to her clerkship under the late Justice Antonin Scalia from 1998-1999.
After her clerkships, Judge Barrett spent two years in private practice before transitioning to academia. After a one-year fellowship at George Washington University, Judge Barrett returned to Notre Dame to teach. She was named a professor there in 2010 and has authored numerous law review articles.
In 2017, President Trump nominated Judge Barrett to the Seventh Circuit. She was confirmed to the appellate court by a vote of 55 to 43.
Positions on Labor & Employment Issues
Judge Barrett’s brief tenure as an appellate judge has not yielded a wealth of decisions from which to glean her stance on many labor and employment issues. Few opinions Judge Barrett wrote for the Seventh Circuit involve questions in this area.
In Smith v. Rosebud Farm, Inc.,1 Judge Barrett authored the opinion for her three-judge panel, finding that a male employee could pursue a claim for sexual harassment by male co-workers under Title VII. Per the court, “The shop was a mixed‐sex workplace, and only men were groped and taunted. Because men were treated differently from women . . . a reasonable jury could conclude that [plaintiff] was tormented because of his sex.”
In Doe v. Purdue,2 Judge Barrett wrote the decision finding that a male student could proceed with his lawsuit against his university for discrimination on the basis of gender in violation of Title IX after he was suspended for sexual misconduct. The student alleged the school’s disciplinary process disregarded his due process rights, and that the school violated Title IX by imposing a punishment “infected by sex bias.” The panel rejected various tests employed by other circuits for identifying “general bias in the context of university discipline.” Instead, the court found that the proper question to ask is: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [plaintiff] ‘on the basis of sex’?”3 If so, the claim can advance. As a practical matter, this means that institutions of higher education in the Seventh Circuit could face a tougher time avoiding trial over Title IX discrimination claims brought by those who were disciplined under campus sexual assault/harassment policies.
In January 2019, Judge Barrett joined the majority in Kleber v. CareFusion Corporation,4 finding that the Age Discrimination in Employment Act (ADEA) does not authorize claims brought under a disparate impact theory by job applicants who are not current employees.
In a decision not involving discrimination, Goplin v. WeConnect,5 the Seventh Circuit panel simply upheld the district court's factual finding that the defendant-employer failed to demonstrate it was the same entity named on an arbitration agreement. As a result, the appellate court affirmed the lower court’s ruling that it could not compel arbitration and dismiss or stay an employee's putative class and collective action under state and federal wage and hour law.
Views on Judicial Precedent
More controversial than her relatively small body of opinions are Judge Barrett’s statements regarding stare decisis, the notion that courts should adhere to their previous decisions.
Barrett’s critics have pointed to a 2013 article, Precedent and Jurisprudential Disagreement, in which she stated, “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 is clearly in conflict with it.”6 Detractors have pointed to this excerpt when suggesting Judge Barrett would be willing to overturn important Supreme Court precedent. In the same article, however, Barrett noted: “To be sure, partisan politics are not a good reason for overturning precedent. . . Basic confidence in the Supreme Court requires the assumption that, as a general matter, justices decide cases based on their honestly held beliefs about how the Constitution should be interpreted.”7 Based on such assertions, Judge Barrett’s judicial philosophy seems to be similar to the late Justice Scalia’s, the subject of one of her more recent law review articles.8
If Judge Barrett is confirmed, conservatives will outnumber the more liberal justices 6-3. Given that her nomination is expected to be highly contentious, if Democrats win the presidency and get control of the Senate in this fall’s elections, it is possible that proposals to change the composition of the Court may be put forward.
More concretely, the fate of the Affordable Care Act will soon be before the Court. In Texas v. California, the Court will decide whether the ACA survives without the health care law’s individual mandate, which a Texas district court ruled unconstitutional and the Fifth Circuit affirmed. In a 2017 law review article Barrett emphasized Justice Scalia’s criticism of the 2012 majority opinion in NFIB v. Sebelius and King v. Burwell, in which the Supreme Court upheld the constitutionality of the Affordable Care Act, which may offer some insight as to how she may approach the validity of the ACA if she is voting in that case.
The Senate Judiciary Committee will now take up the task of vetting Judge Barrett by conducting interviews and a hearing. Senate Majority Leader McConnell has indicated that he intends to put Judge Barrett’s nomination on the Senate Floor for a vote promptly, potentially seating her before the November 3 election.
1 No. 17-2626 (7th Cir. 2018).
2 No. 17-3565, (7th Cir. June 28, 2019).
3 Id., slip op. at 25.
4 2019 U.S. App. LEXIS 2192 (7th Cir. Jan. 23, 2019).
5 2018 U.S. App. LEXIS 16859 (7th Cir. June 21, 2018).
6 Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1728 (2013).
7 Id. at 1729.
8 See Amy Coney Barrett, Justice Scalia and the Federal Court: Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017) (discussing the tension that can arise between originalism’s devotion to text and the rule of stare decisis, which “protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases”).