ACB and Originalism

 Judge Amy Coney Barrett is reportedly a top contender for the Supreme Court. At SCOTUSBlog (a great source on the Supreme Court, btw), Amy Howe profiles her views:

In a story in the National Review in August 2020, conservative legal activist Carrie Severino described Barrett as a “champion of originalism” during her short tenure so far on the 7th Circuit. In the 2019 case Kanter v. Barr, the court of appeals upheld the mail fraud conviction of the owner of an orthopedic footwear company. He argued that federal and state laws that prohibit people convicted of felonies from having guns violate his Second Amendment right to bear arms. The majority rejected that argument. It explained that the government had shown that the laws are related to the government’s important goal of keeping guns away from people convicted of serious crimes.

Barrett dissented. At the time of the country’s founding, she said, legislatures took away the gun rights of people who were believed to be dangerous. But the laws at the heart of Kanter’s case are too broad, she argued, because they ban people like Kanter from having a gun without any evidence that they pose a risk. Barrett stressed that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”

During her time on the court of appeals, Barrett has grappled with the issue of abortion twice – both times in dealing with requests for the full court of appeals to rehear a case, rather than as part of a three-judge panel. In 2018, the full court ordered rehearing en banc in a challenge to an Indiana law requiring fetal remains to be either buried or cremated after an abortion but then vacated that order and reinstated the original opinion blocking the state from enforcing the law.

Barrett joined a dissent from the denial of rehearing en banc written by Judge Frank Easterbrook. Easterbrook began by addressing a separate provision of the law that had also been struck down but was not at issue in the rehearing proceedings: It would bar abortions based on the race, sex or disability (such as Down syndrome) of the fetus. Characterizing the provision as a means of preventing prospective parents from “[u]sing abortion as a way to promote eugenic goals,” Easterbrook expressed doubt that the Constitution bars states from enacting such laws.

Indiana later went to the Supreme Court, which reversed the 7th Circuit’s opinion on the provision governing fetal remains. States have an interest in the proper disposal of fetal remains, the justices reasoned, and this law “is rationally related to” that interest. But the justices did not weigh in on the part of the 7th Circuit’s decision that struck down the ban on abortions based on race, sex or disability, leaving the state unable to enforce that provision.

In 2019, Barrett indicated that she wanted the full 7th Circuit to hear a challenge to an Indiana law requiring young women to notify their parents before obtaining an abortion after a three-judge panel ruled that the law was unconstitutional. She joined a dissent from the denial of rehearing by Judge Michael Kanne, who wrote that “[p]reventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.” The state asked the Supreme Court to weigh in, and the justices sent the case back to the lower courts this summer for another look in light of their ruling in June Medical Services v. Russo, which struck down a Louisiana law that requires doctors who perform abortions to have the right to admit patients at nearby hospitals.

Also in 2019, Barrett joined an opinion that upheld a Chicago ordinance that bars anti-abortion “sidewalk counselors” from approaching women entering an abortion clinic. The Chicago ordinance was modeled after a Colorado law that the Supreme Court upheld in 2000 in Hill v. Colorado, but challengers argued that later decisions by the Supreme Court “have so thoroughly undermined Hill’s reasoning that we need not follow it.” Judge Diane Sykes – who is also on Trump’s list of potential nominees, although now an unlikely candidate at age 62 – wrote that “[t]hat’s a losing argument in the court of appeals. The Court’s intervening decisions have eroded Hill’s foundation, but the case still binds us; only the Supreme Court can say otherwise.” The Supreme Court denied the challengers’ petition for review in July 2020.