Amy Coney Barrett

Barrett spent two years as a judicial law clerk after law school, first for judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit from 1997 to 1998, and then for justice Antonin Scalia of the U.S. Supreme Court from 1998 to 1999.[30]

From 1999 to 2002, Barrett practiced law at Miller Cassidy Larroca & Lewin, a boutique law firm for litigation in Washington, D.C., that merged with the Houston, Texas-based law firm Baker Botts in 2001.[29][31] While at Baker Botts, she worked on Bush v. Gore, the lawsuit that grew out of the 2000 United States presidential election, providing research and briefing assistance for the firm's representation of George W. Bush.[32][33]

In 2001, Barrett was a visiting associate professor and John M. Olin Fellow in Law at George Washington University Law School. In 2002, she joined the faculty of her alma mater, Notre Dame Law School.[34] At Notre Dame, she taught federal courts, evidence, constitutional law, and statutory interpretation. In 2007, she was a visiting professor at the University of Virginia School of Law.[35] Barrett was named a professor of law at Notre Dame in 2010, and from 2014 to 2017 held Notre Dame's Diane and M.O. Miller II Research Chair of Law.[36] Her scholarship focused on constitutional law, originalism, statutory interpretation, and stare decisis.[28] Her academic work has been published in the Columbia, Cornell, Virginia, Notre Dame, and Texas law reviews.[34]

At Notre Dame, Barrett received the "Distinguished Professor of the Year" award three times.[34] From 2011 to 2016, she spoke on constitutional law at Blackstone Legal Fellowship, a summer program for law school students that the Alliance Defending Freedom established to inspire a "distinctly Christian worldview in every area of law".[37] While serving on the Seventh Circuit, Barrett commuted between Chicago and South Bend, continuing to teach courses on statutory interpretation and constitutional theory.[38][39]

In 2010, Chief Justice John Roberts appointed Barrett to serve on the Advisory Committee for the Federal Rules of Appellate Procedure.[34]

Barrett before the Senate Judiciary Committee on September 6, 2017

On May 8, 2017, President Donald Trump nominated Barrett to the U.S. Court of Appeals for the Seventh Circuit—the federal appellate court covering Illinois, Indiana, and Wisconsin—after Judge John Daniel Tinder took senior status.[5][40] A Senate Judiciary Committee hearing on her nomination was held on September 6, 2017.[41] During the hearing, Senator Dianne Feinstein questioned Barrett about a law review article Barrett co-wrote in 1998 with Professor John H. Garvey in which they argued that Catholic judges should in some cases recuse themselves from death penalty cases due to their moral objections to the death penalty.[42] Asked to "elaborate on the statements and discuss how you view the issue of faith versus fulfilling the responsibility as a judge today," Barrett said that she had participated in many death-penalty appeals while serving as law clerk to Scalia, adding, "My personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge"[43][44] and "It is never appropriate for a judge to impose that judge's personal convictions, whether they arise from faith or anywhere else, on the law."[45] Barrett emphasized that the article was written in her third year in law school and that she was "very much the junior partner in our collaboration."[46] Worried that Barrett would not uphold Roe v. Wade given her Catholic beliefs, Feinstein followed Barrett's response by saying, "the dogma lives loudly within you, and that is a concern."[47][48][49]

The hearing made Barrett popular with religious conservatives.[29] Feinstein's and other senators' questioning was criticized by some Republicans and other observers, such as university presidents John I. Jenkins of the University of Notre Dame and Christopher Eisgruber of Princeton, as an improper inquiry into a nominee's religious belief that employed an unconstitutional "religious test" for office;[45][50] others, such as Nan Aron, defended Feinstein's line of questioning.[51]

Judge Laurence Silberman, for whom Barrett first clerked after law school, swearing her in at her investiture for the Seventh Circuit in 2018

Lambda Legal, an LGBT civil rights organization, co-signed a letter with 26 other gay rights organizations opposing Barrett's nomination. The letter expressed doubts about her ability to separate faith from her rulings on LGBT matters.[52][53] During her Senate hearing, Barrett was questioned about landmark LGBTQ legal precedents such as Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas. She said these cases are "binding precedents" that she intended to "faithfully follow if confirmed" to the appeals court, as required by law.[52] The letter Lambda Legal co-signed read, "Simply repeating that she would be bound by Supreme Court precedent does not illuminate—indeed, it obfuscates—how Professor Barrett would interpret and apply precedent when faced with the sorts of dilemmas that, in her view, 'put Catholic judges in a bind.'"[52]

Barrett's nomination was supported by every law clerk she had worked with and all of her 49 faculty colleagues at Notre Dame Law school. 450 former students signed a letter to the Senate Judiciary Committee supporting her nomination.[54][55]

On October 5, 2017, the Senate Judiciary Committee voted 11–9 on party lines to recommend Barrett and report her nomination to the full Senate.[56][57] On October 30, the Senate invoked cloture by a vote of 54–42.[58] It confirmed her by a vote of 55–43 on October 31, with three Democrats—Joe Donnelly, Tim Kaine, and Joe Manchin—voting for her.[27] She received her commission two days later.[2] Barrett is the first and only woman to occupy an Indiana seat on the Seventh Circuit.[59]

On the Seventh Circuit, Barrett wrote 79 majority opinions (including two that were amended and one that was withdrawn on rehearing), four concurring opinions (one a per curiam opinion), and six dissenting opinions (six published and one in an unpublished order).[35]

In June 2019, the court, in a unanimous decision written by Barrett, reinstated a suit brought by a male Purdue University student (John Doe) who had been found guilty of sexual assault by Purdue University, which resulted in a one-year suspension, loss of his Navy ROTC scholarship, and expulsion from the ROTC affecting his ability to pursue his chosen career in the Navy.[60][61] Doe alleged the school's Advisory Committee on Equity discriminated against him on the basis of his sex and violated his rights to due process by not interviewing the alleged victim, not allowing him to present evidence in his defense, including an erroneous statement that he confessed to some of the alleged assault, and appearing to believe the victim instead of the accused without hearing from either party or having even read the investigation report. The court found that Doe had adequately alleged that the university deprived him of his occupational liberty without due process in violation of the Fourteenth Amendment and had violated his Title IX rights "by imposing a punishment infected by sex bias", and remanded to the District Court for further proceedings.[62][63]

In 2017, the Seventh Circuit rejected the federal government's appeal in a civil lawsuit against AutoZone; the Equal Employment Opportunity Commission argued that AutoZone's assignment of employees to different stores based on race (e.g., "sending African American employees to stores in heavily African American neighborhoods") violated Title VII of the Civil Rights Act. Following this, Barrett joined the court as it received a petition for rehearing en banc. Three judges—Chief Judge Diane Wood and judges Ilana Rovner and David Hamilton—voted to grant rehearing, and criticized the three-judge panel's opinion as upholding a "separate-but-equal arrangement". Barrett did not join the panel opinion, but voted with four judges to deny the petition to rehear the case. The petition was unsuccessful by a 5–3 decision.[64][29]

In 2019, Barrett wrote the unanimous three-judge panel opinion affirming summary judgment in the case of Smith v. Illinois Department of Transportation. Smith was a Black employee who claimed racial discrimination upon his dismissal by the department and that he was called a "stupid-ass nigger" by a Black supervisor; the department claimed Smith failed work-level expectations during probationary periods. Barrett wrote that usage of the racial slur was egregious, but Smith's testimony showed no evidence that his subjective experience of the workplace changed because of the slur, nor did it change the department's fact that his discharge was related to "poor performance".[65][66]

In June 2020, Barrett wrote a 40-page dissent when the majority upheld a preliminary injunction against the Trump administration's controversial "public charge rule", which heightened the standard for obtaining a green card.[67] In her dissent, she argued that any noncitizens who disenrolled from government benefits because of the rule did so due to confusion about the rule itself rather than from its application, writing that the vast majority of the people subject to the rule are not eligible for government benefits in the first place. On the merits, Barrett departed from her colleagues Wood and Rovner, who held that DHS's interpretation of that provision was unreasonable under Chevron Step Two. Barrett would have held that the new rule fell within the broad scope of discretion granted to the Executive by Congress through the Immigration and Nationality Act.[68] The public charge issue is the subject of a circuit split.[68][69]

In May 2019, the court rejected a Yemeni citizen and her U.S. citizen husband's challenge to a consular officer's decision to twice deny her visa application under the Immigration and Nationality Act. The U.S. citizen argued that this had deprived him of a constitutional right to live in the United States with his spouse.[70] In a 2–1 majority opinion authored by Barrett, the court held that the plaintiff's claim was properly dismissed under the doctrine of consular nonreviewability. Barrett declined to address whether the husband had been denied a constitutional right (or whether the constitutional right to live in the United States with his spouse existed at all) because the consular officer's decision to deny the visa application was facially legitimate and bona fide, and under Supreme Court precedent, in such a case courts will not "look behind the exercise of that discretion". The dispute concerned what it takes to satisfy this standard. A petition for rehearing en banc was denied, with Chief Judge Wood, joined by Rovner and Hamilton, dissenting. Barrett wrote a rare opinion concurring in the denial of rehearing en banc (joined by Judge Joel Flaum).[70][71]

Barrett had never ruled directly on abortion before joining the Supreme Court, but she did vote to rehear a successful challenge to Indiana's parental notification law in 2019. In 2018, she voted against striking down another Indiana law requiring burial or cremation of fetal remains. In both cases, Barrett voted with the minority. The Supreme Court later reinstated the fetal remains law, and in July 2020 it ordered a rehearing in the parental notification case.[72][73]

In February 2019, Barrett joined a unanimous panel decision upholding a Chicago "bubble ordinance" that prohibits approaching within a certain distance of an abortion clinic or its patrons without consent.[74][75] Citing the Supreme Court's buffer zone decision in Hill v. Colorado, the court rejected the plaintiffs' challenge to the ordinance on First Amendment grounds.[76]

In March 2019, Barrett dissented when the court upheld the federal law prohibiting felons from possessing firearms.[77] The majority rejected the as-applied challenge raised by plaintiff Rickey Kanter, who had been convicted of felony mail fraud, and upheld the felony dispossession statute as "substantially related to an important government interest in preventing gun violence." In her dissent, Barrett argued that while the government has a legitimate interest in denying gun possession to felons convicted of violent crimes, there is no evidence that denying guns to nonviolent felons promotes this interest, and that the law violates the Second Amendment.[78] President Trump pardoned Kanter in December 2020.[79]

In May 2018, Barrett dissented when the panel majority found that an accused murderer's right to counsel was violated when the state trial judge directly questioned the accused while forbidding his attorney from speaking.[80] Following rehearing en banc, a majority of the circuit's judges agreed with her position.[81]

In August 2018, Barrett wrote for a unanimous panel when it determined that the police had lacked probable cause to search a vehicle based solely upon an anonymous tip that people were "playing with guns", because no crime had been alleged.[82] Barrett distinguished Navarette v. California and wrote, "the police were right to respond to the anonymous call by coming to the parking lot to determine what was happening. But determining what was happening and immediately seizing people upon arrival are two different things, and the latter was premature...Watson's case presents a close call. But this one falls on the wrong side of the Fourth Amendment."[83]

In February 2019, Barrett wrote for a unanimous panel when it found that police officers had been unreasonable to assume "that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence." Therefore, the district court should have granted the defendant's motion to suppress evidence found in the residence as the fruit of an unconstitutional search.[84][85]

In January 2019, Barrett wrote for a unanimous panel when it denied qualified immunity to a civil lawsuit sought by a defendant who as a homicide detective had knowingly provided false and misleading information in the probable cause affidavit that was used to obtain an arrest warrant for the plaintiff.[86] (The charges were later dropped and the plaintiff was released.) The court found the defendant's lies and omissions violated "clearly established law" and the plaintiff's Fourth Amendment rights and thus the detective was not shielded by qualified immunity.[87]

In Howard v. Koeller (7th Cir. 2018), in an unsigned order by a three-judge panel that included Barrett, the court found that qualified immunity did not protect a prison officer who had labeled a prisoner a "snitch" and thereby exposed him to risk from his fellow inmates.[88][89]

In Orchard Hill Building Co. v. U.S. Army Corps of Engineers, 893 F.3d 1017 (7th Cir. 2018), Barrett joined a unanimous panel decision, written by Judge Amy J. St. Eve, in a case brought by a property developer challenging the Corps' determination that a wetland 11 mi (18 km) from the nearest navigable river was among the "waters of the United States."[90] The court found that the Corps had not provided substantial evidence of a significant nexus to navigable‐in‐fact waters under Justice Kennedy's concurrence in the Supreme Court's decision in Rapanos v. United States. The case was remanded to the Corps to reconsider whether such a significant nexus exists between the wetlands in question and navigable waters for it to maintain jurisdiction over the land.[91][92]

In June 2018, Barrett wrote for the unanimous panel when it found that a plaintiff could not sue Teva Pharmaceuticals for alleged defects in her IUD due to the lack of supportive expert testimony, writing, "the issue of causation in her case is not obvious."[93][94][95]

In early September 2020, Barrett joined Wood's opinion upholding the district court's denial of the Illinois Republican Party's request for a preliminary injunction to block Governor J. B. Pritzker's COVID-19 orders.[30][96] On August 12, 2021, she rejected a challenge to Indiana University's vaccine mandate, marking the first legal test of COVID-19 vaccine mandates before the Supreme Court.[97]

In June 2019, Barrett wrote for the unanimous panel when it found that the Fair Debt Collection Practices Act cannot create a cause of action for a debtor who received collection letters lacking notices required by the statute because she suffered no injury-in-fact to create constitutional standing to sue under Article III.[98] Wood dissented from the denial of rehearing en banc. The issue created a circuit split.[99][100][101]

In August 2020, Barrett wrote for the unanimous panel when it held that a Teamsters local did not have standing to appeal an order in the Shakman case because it was not formally a party to the case.[102] The union had not intervened in the action, but rather merely submitted a memorandum in the district court opposing a motion, which the Seventh Circuit determined was insufficient to give the union a right to appeal.[103]

In November 2020, Barrett was assigned to the Seventh Circuit.[136] This assignment's duties include responding to emergency applications to the Court that arise from the circuit's jurisdiction, either by herself or else by referring them to the full Court for review.[136][137]

Having hired her allotted four law clerks, Barrett took part in her first oral argument on November 2, hearing the case U.S. Fish and Wildlife Service v. Sierra Club.[138][139]

On November 4, the Court heard Fulton v. Philadelphia, in which the plaintiff, Catholic Social Services, sued the city of Philadelphia after being denied a new contract under the city's Fair Practices Ordinance, which bars discrimination in public accommodations. The Archdiocese-affiliated CSS said that for religious reasons it cannot properly vet potential foster parents who are gay couples. CSS argued that under relevant precedent, the Court should find that CSS as a faith-based charity was unfairly singled out, given that the city allows race- and disability-based exceptions within foster-care placements.[140][141] CSS further claimed the law is shown not to be neutral as required by the Court's 1990 decision Employment Division v. Smith, which allows the government to enforce neutral and generally applicable laws without having to make exceptions for individual religions, because the city labeled CSS's motives "discrimination that occurs under the guise of religious freedom."[141][142] According to the New York Times, Barrett's questions during oral arguments were "evenhanded and did not reveal her position."[143]

On November 26, 2020, Barrett joined the Supreme Court's majority in Roman Catholic Diocese of Brooklyn v. Cuomo,[144] 592 U. S. ____ (2020), in an unsigned[145] 5–4 preliminary injunction in favor of the Roman Catholic Diocese of Brooklyn and the Orthodox Jewish organization Agudath Israel of America, saying that certain COVID-19 restrictions instituted by New York Governor Andrew Cuomo had likely violated the Free Exercise Clause of the First Amendment, in that they "single out houses of worship for especially harsh treatment."[146][147][148][149] The Court said that the restrictions had likely impinged on the fundamental right of the free exercise of religion without their (in constitutional legal parlance) passing the legal test of "strict scrutiny."[150] Cuomo's order was more restrictive than governmental orders involved in similar cases involving churches in California and Nevada that the Court had allowed to stand by a 5–4 vote.[151][152][153] Ross Guberman, author of Point Taken: How to Write Like the World's Best Judges, told the Times he believed Barrett was the principal author of the Court's decision because of its measured tone and word choices, including its use of the word "show".[154]

Barrett delivered her first concurring opinion on February 5, 2021, in the case South Bay United Pentecostal Church v. Newsom.[155][156]

In September 2021, Barrett joined the majority, in a 5–4 vote, to reject a petition to temporarily block a Texas law banning abortion after six weeks of pregnancy; Thomas, Alito, Gorsuch, and Kavanaugh joined her in the majority.[157] In June 2022, Barrett joined with the same majority in Dobbs v. Jackson, voting to completely overturn Roe v. Wade and Planned Parenthood v. Casey.[158]

In January 2022, the Supreme Court voted to allow the execution of an inmate to proceed in Alabama; the case was decided by a 5–4 vote, with Barrett joining Breyer, Sotomayor, and Kagan in dissent.[159]

Barrett wrote her first majority opinion in United States Fish and Wildlife Service v. Sierra Club, which was decided on March 4, 2021.[155][160][161] Traditionally the first opinion delivered by a new justice reflects the opinion of a unanimous court, but not always. While Gorsuch and Kavanaugh wrote unanimous first opinions, Barrett, like her predecessor Justice Ginsburg, wrote an opinion for a divided court.[155][162][163]

Although Barrett ruled against environmentalists in March, she voted against oil refineries in her first dissent, Hollyfrontier Cheyenne Refining v. Renewable Fuels Association.[164]

In June 2021, Barrett joined a unanimous decision in Fulton v. City of Philadelphia, ruling in favor of a Catholic social service agency that had been denied funding from the City of Philadelphia because it does not adopt to same-sex couples; the ruling also declined to overturn Employment Division v. Smith, "an important precedent limiting First Amendment protections for religious practices."[165] In the same month, Barrett was among the six justices who rejected the appeal of a Washington State florist whom lower courts had ruled violated non-discrimination laws by refusing to sell floral arrangements to a same-sex couple based on her religious beliefs against same-sex marriage, leaving the lower court judgments in place.[166][167][168] In November 2021, Barrett voted with the majority in a 6–3 decision to reject an appeal from Mercy San Juan Medical Center, a hospital affiliated with the Roman Catholic Church, which had sought to deny a hysterectomy to a transgender patient on religious grounds.[169] The Court's decision not to hear the case left in place a lower court ruling in favor of the transgender patient; Justices Thomas, Alito, and Gorsuch dissented.[170][171]

Barrett wrote a concurring opinion in Does v. Mills, a case challenging Maine's vaccine requirement for health care workers. She was in the majority in the 6–3 decision to deny a stay of the vaccine requirement, explaining that the case had not been fully briefed or argued.[172]

Barrett is considered a textualist, a proponent of the idea that statutes should be interpreted literally, without considering their legislative history or underlying purpose,[179][180][181][182] and an originalist (of the original-public-meaning, rather than original-intent, variety), a proponent of the idea that the Constitution should be interpreted as perceived at the time of enactment.[179][183][184][185] According to her, "Originalism is characterized by a commitment to two core principles. First, the meaning of the constitutional text is fixed at the time of its ratification. Second, the historical meaning of the text 'has legal significance and is authoritative in most circumstances.'"[183] For the purpose of "describing the disagreement between originalists and nonoriginalists about the authoritativeness of the original public meaning," she refers[183] to a section of a law review article by Keith Whittington, "Originalism: A Critical Introduction",[186] that reads, "Critics of originalism have suggested a range of considerations that might trump original meaning if the two were to come into conflict. From this perspective, fidelity to original meaning is not the chief goal of constitutional theory. ...Confronted with suitably unpleasant results, the nonoriginalist might posit that the original meaning should be sacrificed. Alternatively, we might think that contemporary public opinion should trump original meaning. ...Underlying all these considerations is a view that courts are authorized to impose constitutional rules other than those adopted by the constitutional drafters. ...the originalist must insist that judges not close their eyes to the discoverable meaning of the Constitution and announce some other constitutional rule to supersede it. It is at that point that the originalist and the nonoriginalist must part ways."[186]

Textualism, Barrett says, requires that judges construe statutory language consistent with its "ordinary meaning": "The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say." According to Barrett, "Textualism stands in contrast to purposivism, a method of statutory interpretation that was dominant through much of the 20th century." If a court concludes that statutory language appears to be in tension with a statute's overarching goal, "purposivists argue that a judge should go with the goal rather than the text". For Barrett, textualism is not literalism, nor is it about rigid dictionary definitions. "It is about identifying the plain communicative content of the words".[187]

Barrett clerked for Justice Antonin Scalia, and has spoken and written of her admiration of his adherence to the text of statutes and to originalism,[188] writing: "His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they may hold."[189] In one article she quoted Scalia on the importance of the original meaning of the Constitution: "The validity of government depends upon the consent of the governed ... [s]o what the people agreed to when they adopted the Constitution ... is what ought to govern us."[183] In a 2017 article in the law review Constitutional Commentary, reviewing a book by Randy E. Barnett, Barrett wrote: "The Constitution's original public meaning is important not because adhering to it limits judicial discretion, but because it is the law. ...The Constitution's meaning is fixed until lawfully changed; thus, the court must stick with the original public meaning of the text even if it rules out the preference of a current majority."[190][191]

According to Barrett, textualists believe that when a court interprets the words of statutes, it should use the most natural meaning of those words to an ordinary skilled user of words at the time, even if the court believes that the legislature intended that the words be understood in a different sense. If the legislature wishes the words of a statute to carry a meaning different from how a non-legislator would understand them, it is free to define the terms in the statute. As Scalia put it, "[A]ll we can know is that [the legislature] voted for a text that they presumably thought would be read the same way any reasonable English speaker would read it." Scalia insisted that "it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawmaker promulgated."[192][193]

Barrett has been critical of legal process theory, which gives a more expansive role to theory in shaping the interpretation of law than do textualism and originalism.[192][193] She said that one example of the "process-based" approach can be found in King v. Burwell, in which the Supreme Court, for reasons related to the unorthodox legislative process that produced the Affordable Care Act, interpreted the phrase "Exchange established by the State" to mean "Exchange established by the State or the federal government."[193]

In a journal article, "Suspension and Delegation",[194] Barrett noted that constitutionally only Congress has the authority to decide the terms under which habeas corpus may be legitimately suspended.[195] In all but one of the previous suspensions of habeas corpus, Barrett thought that Congress violated the Constitution "by enacting a suspension statute before an invasion or rebellion occurred—and in some instances, before one was even on the horizon."[81][194] In an educational essay, she sided with the dissenters in Boumediene v. Bush after considering historical factors.[196]

At her 2017 Senate confirmation hearing for the 7th Circuit Court of Appeals, Barrett said she would follow Supreme Court precedent while on the appellate bench. In 2020, during her nomination acceptance speech at the White House Rose Garden, Barrett said, "Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold";[197][198] she also said judges "must apply the law as written".[199][200] She explained her view of precedent in response to questions at the hearing.[201]

In a 2013 article in the Texas Law Review on the doctrine of stare decisis, Barrett listed seven cases that she believed should be considered "superprecedents"—cases the Court would never consider overturning. They included Brown v. Board of Education and Mapp v. Ohio (incorporating the Fourth Amendment onto the states),[202] but specifically excluded Roe v. Wade (1973). In explaining why it was excluded, Barrett referenced scholarship agreeing that in order to qualify as "superprecedent", a decision must have widespread support from not only jurists but politicians and the public at large to the extent of becoming immune to reversal or challenge (for example, the constitutionality of paper money). She argued that the people must trust a ruling's validity to such an extent that the matter has been taken "off of the Court's agenda", with lower courts no longer taking challenges to them seriously. Barrett pointed to Planned Parenthood v. Casey (1992) as evidence that Roe had not attained this status, and quoted Richard H. Fallon Jr.: "[A] decision as fiercely and enduringly contested as Roe v. Wade has acquired no immunity from serious judicial reconsideration, even if arguments for overruling it ought not succeed."[202][203]

Concerning the relationship of textualism to precedent, Barrett said, "It makes sense that one committed to a textualist theory would more often find precedent in conflict with her interpretation of the Constitution than would one who takes a more flexible, all-things-considered approach."[202] She referenced a study by Michael Gerhardt which found that, as of 1994, no two justices in that century had called for overruling more precedents than Justices Scalia and Hugo Black, both of whom were textualists, even though Black was a liberal and Scalia a conservative. Gerhardt also found that during the Rehnquist Court's last 11 years, the average number of times a justice called for the overruling of precedent was higher for textualist justices, with one per year coming from Ginsburg (non-textualist) up to just over two per year from Thomas (textualist). Gerhardt wrote that not all the calls for overruling were related to textualism issues, and that one must be careful in the inferences one draws from the numbers, which "do not indicate either why or on what basis the justices urged overruling."[202]

In 2012, Barrett signed a letter criticizing the Obama administration's approach to providing employees of religious institutions with birth control coverage without having the religious institutions pay for it, calling it an "assault" to religious liberty.[204]

Barrett has been critical of the majority opinion written by Chief Justice John Roberts in National Federation of Independent Businesses v. Sebelius (2012), which upheld the constitutionality of the Affordable Care Act's individual mandate. She wrote in 2017: "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power."[191][205][204][206]

Barrett opposes abortion.[207][208] In 2006, she signed an advertisement placed by St. Joseph County Right to Life, an anti-abortion group, in a South Bend, Indiana, newspaper. The ad read: "We, the following citizens of Michiana, oppose abortion on demand and defend the right to life from fertilization to natural death. Please continue to pray to end abortion." An unsigned, second page of the advertisement read, "It's time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children."[209][210][211] In 2013, Barrett signed another ad against Roe v. Wade that appeared in Notre Dame's student newspaper and described the decision as having "killed 55 million unborn children". The same year, she spoke at two anti-abortion events at the university.[212]