Hon. Amy Coney Barrett

United States Court of Appeals for the Seventh Circuit (2017-Present)

Judge Amy Coney Barrett has been a judge for less than a year. In that time, unsurprisingly, she has ruled on a relatively small number of appeals. None has implicated the core questions of political speech and association that the Institute is evaluating as part of its review of potential Supreme Court justices.

This is not a black mark; the cases a judge reviews are, in large part, random. This is especially true for political speech cases, many of which (as we explain in our discussion of Judge Kavanaugh) are brought in the District of Columbia, where federal agencies are headquartered and where Congress has sometimes required them to be sued.

Nevertheless, the Institute conducted a review of Judge Barrett’s opinions, as well as her extensive academic record. Those articles, which were the subject of controversy at her confirmation to be a federal appeals court judge, and which will doubtless be discussed if she is nominated for elevation, did not directly address issues of free political speech and association.

All that can be said, then, is that Judge Barrett has yet to be tested on these difficult questions of First Amendment law. It is up to the President and Senate to decide whether that test will come, in time, at the Supreme Court.