Amy Coney Barrett was reportedly a front-runner in 2018 when President Donald Trump tapped Brett Kavanaugh to replace outgoing Justice Anthony Kennedy on the Supreme Court. But 2020 may be the year her number is called.
Barrett is reportedly atop Trump’s shortlist of candidates to replace the late Ruth Bader Ginsburg, who died of pancreatic cancer on Friday at the age of 87. Ginsburg’s death is poised to set up a major battle to fill her seat with just 43 days until the election. Just hours after Ginsburg’s passing, Trump said that he has the “obligation” to move forward with a nominee “without delay,” and should be successful, it would tilt the Supreme Court rightward, by a 6-3 margin.
For critics who worry that a third Trump pick would reshape the courts in favor of religious conservatives, Barrett is the manifestation of their worst fears. Two years ago, Lambda Legal joined the National Center for Lesbian Rights, Trans Law Center, GLSEN, PFLAG National, and 22 other LGBTQ+ organizations in opposing her potential Supreme Court nomination.
“[W]e have concluded that [Barrett’s] views on civil rights issues are fundamentally at odds with the notion that [LGBTQ+] people are entitled to equality, liberty, justice and dignity under the law,” signatories wrote in a letter.
Among the more concerning aspects of Barrett’s record, according to equality groups, are her opinions on same-sex unions and LGBTQ+ nondiscrimination. Prior to her confirmation to the Seventh Circuit Court of Appeals in 2017, she signed onto a letter describing marriage as the “indissoluble commitment of a man and a woman.” The letter went on to wax about “the significance of sexual difference and the complementarity of men and women.”
Advocates expressed worry about how Barrett will “reconcile her publicly avowed views” with rulings like Obergefell v. Hodges and Bostock v. Clayton County, which affirmed the rights of equal marriage and LGBTQ+ nondiscrimination.
Barrett herself has declined to shed light on the matter. The 48-year-old has, for instance, dismissed the importance of Supreme Court precedent in cases like Roe v. Wade, a landmark abortion ruling that she has claimed was “created through judicial fiat.” But while she has expressed openness to the idea of “super precedents” — which she described in a 2013 law review article as “decisions that no serious person would propose to undo even if they are wrong” — Barrett won’t say whether LGBTQ+ rights cases qualify.
“I have neither offered my own definition of superpredecent nor undertaken an independent analysis of whether any particular case qualifies as a superprecedent under the definition employed by the scholars whose work I cited,” she wrote in a 2017 questionnaire.
While Barrett has had few chances to weigh in on LGBTQ+ rights as a member of the Seventh Circuit Court of Appeals, the details of her professional life will not ease any minds. She began her career by clerking for the late Supreme Court Justice Antonin Scalia, who famously compared LGBTQ+ people to murderers and animal abusers in a 1996 dissent regarding nondiscrimination laws, and was reportedly his favorite.
Meanwhile, Barrett has a cozy relationship with LGBTQ+ hate groups. Organizations like the American Family Association, which was behind Target’s bathroom boycott, and the American Principles Project, which recently aired anti-trans ads in Michigan, backed her nomination in 2018, in part because they believe she would help them chip away at LGBTQ+ equality. She also has ties to Alliance Defending Freedom, which defended anti-gay Colorado baker Jack Phillips in a 2018 Supreme Court case and has authored anti-trans bathroom bills in dozens of U.S. states.
It’s unknown, as of now, whether Barrett is Trump’s preferred candidate for the Supreme Court. A selection is expected later this week, and Politico reports that Republicans are pushing another name behind the scenes: Florida Supreme Court Justice Barbara Lagoa, who is Cuban American. Gov. Ron DeSantis and Congressman Matt Gaetz allegedly believe that picking Lagoa, a woman of color, would help him win over Latinos in Florida, a critical swing state.
But oddsmakers continue to favor Barrett following an Axios report published last year which suggested she was already waiting in the wings. “I’m saving her for Ginsburg,” he reportedly said at the time.
Should Trump secure the 51 votes needed to confirm Barrett in the GOP-controlled Senate, it would represent a major reversal from her predecessor. As the co-founder of the American Civil Liberties Union’s Women’s Rights Project, Ginsburg fought the Supreme Court to recognize women as a protected class in anti-discrimination law, which laid the foundation for its later expansion of those rights to LGBTQ+ people.
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