How Conservative Is Amy Coney Barrett?October 14, 2020
Just how conservative is Amy Coney Barrett?
It’s a question we’ve asked before with other appellate judges who have been nominated to the Supreme Court — most recently with Justice Brett Kavanaugh — but it’s surprisingly difficult to answer with any precision. On the one hand, we know that Barrett’s appointment would mean a huge rightward shift on the court, as she is far more ideologically conservative than the late Justice Ruth Bader Ginsburg. But on the other hand, we don’t really know how conservative Barrett would be if she’s confirmed.
We can look to her track record on the 7th U.S. Circuit Court of Appeals, though, for clues. Barrett has served on that court for almost three years now, and two different analyses of her rulings point to the same conclusion: Barrett is one of the more conservative judges on the circuit — and maybe even the most conservative.
University of Virginia law professors Joshua Fischman and Kevin Cope analyzed more than 1,700 cases that the 7th Circuit has heard since Barrett joined the court in 2017, including 378 where Barrett cast a vote,1 and according to their analysis, Barrett is part of a cluster of conservative judges at the rightmost edge of the 7th Circuit.
However, even though her ideological estimate was furthest to the right of the judges currently on the 7th Circuit, Barrett was statistically indistinguishable from the three other Trump appointees and three judges appointed by other Republicans, including prominent conservative Judges Diane Sykes and Frank Easterbrook. “[Barrett is] clearly near the right side of the conservative spectrum on the court,” Fischman told us. “She’s not off the charts, though — she’s in line with other well-known, well-respected conservative judges on the court.”
But there are some differences between Barrett and her current conservative colleagues. Fischman and Cope also dug into how judges ruled on various types of issues and found that Barrett is closer to the middle of the court on cases involving employment discrimination, labor and criminal defendants, but much more conservative in cases involving civil rights — a category that is mainly composed of cases involving prisoners’ rights and civil rights claims against government employees, but also includes hot-button issues like gun rights, voting rights and abortion rights.
|conservative share of decisions|
|Type of cases||Barrett||7th Circuit||Diff.|
|Discrimination + labor||83.8%||83.2%||+0.6|
|Criminal + habeas corpus||87.9||86.2||+1.6|
Barrett’s record on abortion has come under a lot of scrutiny, but Fischman noted that she might also be especially conservative on gun rights. She only heard a handful of cases involving Second Amendment rights during her time on the 7th Circuit, but she came out strongly against several of her conservative colleagues in a case involving a law stripping felons of their gun rights, arguing that the Second Amendment doesn’t allow such a blanket ban. Those views could be especially relevant on the Supreme Court, which hasn’t heard a major case involving gun rights in almost a decade.
We can also look at how Barrett has ruled in special cases known as “en banc” hearings, which are used when there’s a serious disagreement among the judges about an outcome, or when circuit precedent is being reconsidered. These cases are not very common — Barrett, for instance, has only sat on six en banc panels in her three years on the court — but they can offer a clearer snapshot of a judge’s ideology, as judges often have more freedom in how they rule in these cases, in part because they are not constrained by circuit precedent as they normally would be. En banc hearings are also more comparable to cases the Supreme Court might hear because the legal issues are knottier. And they’re more similar to how the Supreme Court works, because they require all the circuit judges to vote together rather than splitting them into smaller panels of three judges, which is how the appeals court normally operates.
An analysis of 7th Circuit en banc cases by Tom Clark, a political science professor at Emory University, mirrored what Fischman and Cope found: After just six cases, Barrett fell on the rightmost edge of the court, along with two other Trump appointees and Sykes. (There was considerably more uncertainty in her estimate, though, since Clark’s model was drawing on less data for judges who have been on the court for less time.)
“Things could be different with more data, of course,” said Clark. But overall, he thought her ideological profile was remarkably clear. “She’s voting very consistently in these cases so far. Even with this small number of cases, she’s showing up on the far right edge of the court.”
It’s hard, of course, to directly extrapolate from Barrett’s record as an appellate judge to how she might rule as a Supreme Court justice, but it’s reasonable to expect she will be reliably conservative. That said, Barrett has not always ruled in line with fellow conservatives on the 7th Circuit, and even the conservative justices on the Supreme Court disagree with each other on some topics or differ on which issues are more important. It remains to be seen just how persuadable Barrett might be if she’s confirmed, or how her perspective might change after a few years on the bench.
This is important, too, because to keep the Supreme Court from moving quickly to the right on hot-button issues, Chief Justice John Roberts may try to peel off another conservative vote. Whether Barrett might be amenable to such overtures is hard to say, but we do know that during her time on the 7th Circuit, Fischman and Cope found that she has voted in a liberal direction about 20 percent of the time when at least one Democratic nominee is on the panel but only about 9 percent of the time when the panel is composed of three Republican nominees. That could indicate that Barrett is open to the arguments of her more liberal colleagues — or that she is choosing not to dissent in some cases for the sake of collegiality. Either way, though, it’s a sign that she does vote slightly differently depending on the composition of the panel, rather than being consistently conservative regardless of who she’s voting with.
Clifford W. Berlow, a partner at the law firm Jenner & Block who specializes in appellate litigation, said that this is in line with the 7th Circuit’s general reputation as a polite, respectful circuit. “I don’t think you’ve seen from Barrett or any of the other [Trump appointees] the sort of scathing, scorched-earth dissents or biting concurrences that you might see in some other circuits,” Berlow said. He added that he wouldn’t be surprised if Barrett carried this sense of collegiality with her to the Supreme Court.
Overall, though, it’s plain from Barrett’s record why Republicans are eager to confirm her before the election and why Democrats are dead-set against her. With only a few years under her belt as a judge, she’s established herself as one of the most conservative members of a court that already has a lot of Republican appointees. If she’s confirmed, it seems fairly safe to assume that she would continue that pattern — even if she’s occasionally willing to break from her fellow conservatives.