October 9, 2020

Barrett's Conservative Circuit Court Record


  • During her time on the 7th Circuit, Judge Amy Coney Barrett has distinguished herself as a consistent conservative and originalist voice on the bench.
  • She wrote for a unanimous three-judge panel in providing due process rights for students in university disciplinary proceedings.
  • Like Justice Scalia, she has written influential dissents, most notably in major immigration and Second Amendment cases.

One of President Trump’s earliest circuit court nominees, Judge Amy Coney Barrett has built a consistent conservative, originalist record over her three years on the 7th Circuit. President Trump nominated her for her 7th Circuit judgeship on May 8, 2017, and she was confirmed on October 31 of that year by a 55-43 vote. Before that nomination, Barrett was a professor at Notre Dame Law School.

Because the Supreme Court reviews less than 1% of circuit court decisions, circuit courts are often the final word on most legal issues. Circuit judges hear cases in virtually every area of law, and over the course of three years, Judge Barrett has had ample opportunity to leave her mark. She has written 91 opinions since becoming a circuit judge, creating significant precedent in areas like procedural due process, religious freedom, and criminal law. Only six of her opinions have been dissents, but, like the dissents of the late Justice Scalia, those have been influential in the broader legal debate in areas like immigration law and the Second Amendment.

Noteworthy Barrett Opinions

Barrett's Conservative Circuit Court Record

Second Amendment

On her Judiciary Committee questionnaire, Judge Barrett listed Kanter v. Barr as the first of her most significant cases. The defendant in that case had been convicted of mail fraud for selling therapeutic shoe inserts he had misrepresented as being Medicare-approved. Because of that conviction, state and federal laws prevented him from owning a firearm. He challenged those statutes as violating his Second Amendment rights.

Judge Barrett dissented from the three-judge 7th Circuit panel decision to uphold the statutes. She cited founding-era history suggesting that the Second Amendment only allows legislatures to prohibit dangerous people from possessing firearms. Quoting Justice Samuel Alito’s opinion in the case McDonald v. City of Chicago, she complained that the majority was “treat[ing] the Second Amendment as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

Another major Barrett opinion relating to the rights of gun owners came in the case United States v. Watson. In that case, police received an anonymous 911 call reporting boys playing with guns near a car in a parking lot. A responding police officer searched the car and found a passenger had a gun. The passenger was a prior felon, and thus could not legally possess a gun. Barrett’s opinion held that the police did not have reasonable suspicion that a crime was being committed because possession of a firearm is generally legal. Because the police did not have reasonable suspicion, Barrett and two other judges found that evidence stemming from the search should have been inadmissible.

Due Process in Campus Disciplinary Cases

Another case Judge Barrett listed among her most significant is Doe v. Purdue University. In that case, a student was found guilty of sexual violence and suspended by Purdue University for an academic year. Because of that suspension, he was expelled from the Navy ROTC program. Writing for a unanimous three-judge panel, Judge Barrett held that the student alleged valid violations of the 14th Amendment’s procedural due process requirements and Title IX of the Education Amendments of 1972 prohibiting discrimination on the basis of sex by schools receiving federal funding.

Judge Barrett found that Purdue University had deprived the student of a liberty interest by telling the Navy that it had found the student guilty of committing sexual assault. In doing so, Purdue deprived the student of “his freedom to pursue naval service, his occupation of choice.” Barrett held that Purdue’s process was inadequate to justify depriving the student’s liberty interest because, among other things, two of the three members of the university disciplinary panel had not read the full investigative report of the incident, Purdue did not disclose its evidence to the student, and the disciplinary committee did not consider evidence that the alleged victim of the sexual violence was depressed, had attempted suicide, and was angry at the student for reporting the suicide attempt.

On the Title IX claim, Judge Barrett found that an Obama administration 2011 “Dear Colleague” letter recommending a “more rigorous approach to campus sexual misconduct allegations,” combined with Purdue’s failure to seek direct testimony from the female accuser, created a plausible allegation that Purdue discriminated against the student based on his sex. According to Barrett, it was “plausible that [the disciplinary committee members] chose to believe Jane [Doe] because she is a woman and to disbelieve John [Doe] because he is a man.”

Religious Freedom

Judge Barrett’s most important case involving the religion clauses of the Constitution was Grussgott v. Milwaukee Jewish Day School. Miriam Grussgott was a teacher fired from a religious school. She filed a lawsuit alleging that the school violated the Americans with Disabilities Act. The school argued that the complaint should be barred under the ministerial exception to employment-discrimination laws.

Writing for a three-judge panel, Barrett found that the ministerial exception could apply to Grussgott as a religious school teacher. She applied the Supreme Court’s leading case regarding the ministerial exception, Hosanna-Tabor Evangelical Church and School v. EEOC, which created a four-factor test to decide whether the exception should apply. She decided that the four factors should not be applied mechanistically and instead used an “all-things-considered approach” to conclude that the importance of Grussgott’s role as teacher outweighed the other factors. The Supreme Court itself later adopted a similar approach in the 2020 case Our Lady of Guadalupe School v. Morrissey-Berru by a 7-2 vote.


Another entry on Judge Barrett’s most significant case list was her dissent in Cook County v. Wolf. That case involved a rule adopted by the Department of Homeland Security to implement the statutory ban on green cards for people likely to become a “public charge.”

The DHS rule defined “public charge” as any noncitizen who receives any amount of qualifying government benefits for a total of more than 12 months in a 36-month period. Qualifying benefits included benefits from any level of government for income maintenance, Supplemental Nutrition Assistance Program benefits, most forms of Medicaid, and various kinds of housing assistance. Receiving multiple benefits for one month counted as multiple months for purposes of the rule.

The majority upheld the district court’s preliminary injunction against the DHS rule because it thought the rule reflected an unreasonable interpretation of “public charge” and was likely inconsistent with the Rehabilitation Act of 1973, which prohibits the federal government from excluding people from federal programs “solely by reason of her or his disability.” It also found that the DHS rule was likely arbitrary and capricious in violation of the Administrative Procedure Act.

Judge Barrett’s dissent presented the textualist case for the DHS rule, focusing on the long history of the term “public charge” dating back to the 19th century and proceeding through the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Barrett ultimately found that DHS’ definition was reasonable. She further noted that “one must be clear-eyed about the fact that federal law is not particularly generous about extending public assistance to noncitizens.”

The Supreme Court ultimately stayed the district court’s preliminary injunction, keeping in place the DHS rule while the litigation continued in lower courts.

Issue Tag: Judiciary