First Amendment plays an unexpected starring role in Amy Coney Barrett confirmation hearing

Sen. Ben Sasse (R-Neb.) accidentally stumped Amy Coney Barrett during her confirmation hearing on Wednesday afternoon when he asked President Trump’s Supreme Court nominee to “reflect a little bit on the glories of the First Amendment” by naming “the five freedoms” it enumerates.

“Speech, religion, press, assembly,” she answered, counting them off with her right hand. “I don’t know. What am I missing?”

“Redress or protest,” Sasse answered, referring to what the Bill of Rights describes as the right “to petition the Government for a redress of grievances.”

Barrett, who has taught law at Notre Dame for two decades and spent three years as a judge on the 7th Circuit, was good-natured about her brain freeze. “Sometimes softballs turn out not to be softballs,” she said later, referring to Sasse’s question.

Sasse lobbed what he intended to be another softball when he asked Barrett to explain why James Madison clustered those five freedoms together. This should have been particularly easy for someone who says her entire judicial philosophy is built around understanding the original intent of the Founding Fathers when they wrote the text of the Constitution.

“I don’t know what you’re getting at on that one,” said Barrett, 48. “You mean like what is the common denominator?”

“Yes,” Sasse said.

“I don’t know why, actually,” the judge replied. “I’m sure there’s a story that I don’t know there about why those appeared in the First Amendment all together rather than being split up in different amendments.”

Sasse, who earned a doctorate at Yale in American history, explained to Barrett how the five freedoms were clustered because they are interconnecting. “You don’t really have freedom of religion if you don’t also have freedom of assembly,” he said. “You don’t really have freedom of speech if you can’t also publish your beliefs and advocate for them. You don’t really have any of those freedoms if you can’t protest at times and seek to redress grievances in times when government oversteps and tries to curtail any of those freedoms.”

These unforced errors came amid what was otherwise a very strong performance by Barrett, who answered questions for two full days with only a blank notepad in front of her. Notably, though, senators asked in one form or another about all five of the freedoms enumerated in the First Amendment as they questioned her on Wednesday. While Democrats stayed mostly focused on health care and reproductive rights to score pre-election political points, senators from both parties nevertheless devoted a surprising amount of time to drilling down on jurisprudential concerns stemming from how the Supreme Court has chosen to interpret the First Amendment, from coronavirus lockdown orders to campaign finance and libel law to restrictions on protests outside abortion clinics.

Barrett used a First Amendment example to respond to criticism that her originalist legal philosophy is overly rigid. “The fact that there wasn’t the Internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s free speech clause couldn’t apply to those things now,” she said. “It enshrines a principle, and we understand the principle as it was at the time, but then it’s capable of being applied to new circumstances.”

At another point, Barrett recounted her job interview with the late Justice Antonin Scalia to clerk for him in 1998. “He asked what area of the court’s precedent I thought needed to be better organized, and off-the-cuff I said, ‘Well, gosh, the First Amendment,’” she recalled. “And he said, ‘Well, what do you mean?’ Then I fell down a rabbit hole of trying to explain without success – because it is a very complicated area of the law – how one might see one’s way through the thicket of balancing the Establishment Clause against the Free Exercise Clause. … It’s been something that the court has struggled with for decades, to try to come to a sensible way to apply both of those clauses.”

Trying to respond to Democratic attacks that Roe v. Wade would be in peril with Barrett on the high court, Sen. Mike Lee (R-Utah) highlighted Barrett’s vote as a judge to uphold a Chicago law which established a buffer area around abortion clinics. A three-judge panel upheld the ordinance, which says protesters cannot come within eight feet of individuals to demonstrate or hand out leaflets outside facilities that perform abortions. “You followed that precedent, and you did so as a jurist rather than following whatever personal predilection might have otherwise guided you or any other member of the panel,” Lee said.

Barrett noted that, as a lower court judge, she was bound to follow the Supreme Court decision in Hill v. Colorado that upheld similar restrictions. Once she is a justice, however, that would no longer be the case. Moreover, what Barrett did not say during her exchange with Lee, is that the opinion she signed onto actually criticized the Supreme Court precedent as “incompatible with current First Amendment doctrine.”

Two GOP senators asked about the constitutionality of pandemic-related restrictions that have been imposed by Democratic governors. Sen. Josh Hawley (R-Mo.) praised Barrett for ruling last month, along with two other judges on the circuit, against a lawsuit brought by the Republican Party of Illinois, which was aimed at overturning a lockdown order from Gov. J.B. Pritzker (D). The state party lawyers argued that it was unconstitutional for Pritzker to limit political gatherings to no more than 50 people while making an exemption for churches and religious organizations.

Barrett said she believes it is “permissible” for a governor “to carve out an exception for free exercise” of religion and “doing so didn’t compel the government to extend the same protection to everyone.”

“The point that the panel opinion makes is that the free exercise of religion is singled out for its own protection in the First Amendment, rather than being a subset of speech,” she said. “And the position that the Illinois Republican Party took in that case would have been putting everything under the speech umbrella.”

When Sen. Thom Tillis (R-N.C.) asked about other governors restricting worship services amid the pandemic, Barrett explained that “the Supreme Court’s general position is that the government has a compelling interest in responding to a health crisis of this sort.” But she said a judge also needs to “look at the other amendments and other rights at play.”

Sen. Sheldon Whitehouse (D-R.I.) brought up the Supreme Court’s 2010 decision in Citizens United during both of his rounds of questioning. On Wednesday, he questioned Barrett about conservatives on the court overturning longstanding principle in 2018 with their 5-4 decision in Janus v. AFSCME, which restricted the power of labor unions to collect fees from non-union members on free speech grounds.

Sen. Ted Cruz (R-Tex.) sought to refute Whitehouse. “The Democratic dark money efforts dwarf the Republican dark money efforts, which is why without a twinge of hypocrisy Democratic members make this charge repeatedly,” he said.

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) used his time to express openness to passing new campaign finance laws. His Democratic challenger, Jaime Harrison, announced Sunday that he raised $57 million in the last three months, the biggest quarterly fundraising haul by any Senate candidate ever. Graham announced Wednesday that he raised $28 million in the same period, which is the most any Republican Senate candidate has ever raised in a quarter.

“Let’s go to Citizens United,” Graham told Barrett. “To my good friend, Senator Whitehouse, me and you are going to come closer and closer about regulating money ‘cause I don’t know what’s going on out there, but I can tell you there’s a lot of money being raised in this campaign,” Graham said. “I’d like to know where the hell some of it’s coming from!”

Barrett responded that “Citizen United extends the protections of First Amendment to corporations who are engaged in political speech.” Graham asked her: “If Congress wanted to revisit that and somebody challenged it … what would you do? How would the process work?” Barrett gave a non-direct answer.

Sen. Amy Klobuchar (D-Minn.), whose father was a legendary sportswriter and columnist for the Minneapolis Star Tribune, expressed alarm as she questioned Barrett on Wednesday about what she fears is Justice Clarence Thomas’s hostility toward press freedom. In a concurring opinion last year related to a defamation lawsuit brought against Bill Cosby, Thomas called on his fellow justices to reconsider the court’s 1964 decision in New York Times v. Sullivan. That ruling requires plaintiffs to demonstrate “actual malice” on the part of defendants who are public figures in order for them to prevail on a defamation claim.

“Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own ‘federal rule[s]’ by balancing the ‘competing values at stake in defamation suits,’” Thomas wrote in McKee v. Cosby. “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Klobuchar asked Barrett whether she agrees that the court should reconsider the actual malice standard because it is inconsistent with the original meaning of the Constitution. “Well, I can’t really express a view on either New York Times v. Sullivan or Justice Thomas’s critique,” she said. “I can’t comment on matters of litigation or grade precedents that the court has already decided.”

Klobuchar also asked about the Supreme Court’s 1972 decision in Branzburg v. Hayes, which relates to journalists being subpoenaed to appear before grand juries. “Many federal courts of appeals have recognized what’s called the reporter’s privilege, which protects a reporter’s First Amendment right to protect his or her sources from disclosure in certain circumstances,” she said. “The 7th Circuit, on which you serve, has rejected a constitutional basis for a reporter’s privilege. Under its original public meaning, does the First Amendment protect a reporter’s decision to protect a confidential source?”

Barrett refused to say. “That would be eliciting a legal conclusion from me, which I can’t answer in a hypothetical form in the hearing,” she said. “It’s also a question … that’s closely related to ones that are being litigated.”

Klobuchar then asked, generally, whether Barrett would agree that, if reporters cannot protect their sources, they are less likely to be able to find confidential witnesses willing to share information about issues of public importance. Barrett declined to say. “The founders recognized that a free press is vital to a vibrant and strong democracy, and that’s why we need Supreme Court justices who understand the importance of protecting the rights of journalists,” said Klobuchar.

This was part of a general pattern of evasiveness during her two days of testimony. Barrett refused to espouse a position on whether a president can pardon himself for past or future crimes, whether Trump could unilaterally delay the election if he wanted, whether voter intimidation is unlawful, and so much more.

Sen. Pat Leahy (D-Vt.) asked whether a president could refuse to comply with a court order. “The Supreme Court can’t control what the president obeys,” she said.

Sen. Cory Booker (D-N.J.) asked whether it is morally wrong for government to take immigrant children away from their parents to try deterring immigration, as the Trump administration has done. “That’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge,” she said.

Sen. Kamala Harris (D-Calif.) asked whether Barrett agrees that “voting discrimination still exists.” She declined to express an opinion. “These are very charged issues,” she said. Harris said it is “a known fact.” Barrett replied: “I think racial discrimination still exists. We have seen evidence of discrimination this summer.”

The Democratic vice-presidential nominee asked whether covid-19 is infectious and smoking causes cancer. Barrett said yes. Then Harris asked if climate change is real and a threat to human health. Barrett said she could not answer because it is a “very contentious matter” that is under public debate.

In addition to saying that she does not consider Roe v. Wade to be “super precedent,” Barrett also said it would be improper for her to endorse the court’s 1965 holding in Griswold v. Connecticut that states could not ban married couples from using contraceptives. Sen. Dick Blumenthal (D-Conn.) pointed out that three other justices appointed by Republican presidents – John Roberts, Thomas and Sam Alito – did not hesitate to endorse Griswold at their own confirmation hearings.

“I’m stunned,” said Blumenthal.

“I can’t grade precedent,” said Barrett.

But Barrett was happy to endorse other Supreme Court precedents, including Brown v. Board of Education, which banned “separate but equal” schooling; Loving v. Virginia, which legalized interracial marriage; and Marbury v. Madison, which created judicial review.

“Similarly, Barrett would not comment on the court’s 2003 ruling in Lawrence v. Texas that struck laws criminalizing homosexual conduct or the court’s 2015 ruling [in Obergefell v. Hodges] that said same-sex couples could not be denied the right to marry,” Robert Barnes, Seung Min Kim and Ann Marimow report. “Barrett several times told Democrats that her refusal to endorse certain decisions of the court did not mean they were endangered and said such questioners were pushing her to violate judicial canons of ethics and impartiality. She called it ‘shockingly unlikely’ that any state or federal lawmakers would reinstate bans on birth control and said the Supreme Court decision legalizing contraception is not ‘in danger of going anywhere.’”

Several of the Democratic senators on the committee openly acknowledged during their questioning that Barrett will get confirmed, albeit on a party-line vote, to replace the late Justice Ruth Bader Ginsburg. The Judiciary Committee is hearing from outside witnesses today and plans a vote on Oct. 22 to advance her nomination. She is on track to be confirmed by the full Senate the week after that.

Asked how she was hanging in there, Barrett mentioned that she had allowed herself to enjoy a glass of wine after finishing her first day before the committee. Over 12 hours, 22 senators had each gotten 30 minutes to ask questions. As her second and final day in the hot seat wrapped up, with the lawmakers all getting another 20 minutes, Graham told her as he gaveled the session to a close: “You can have two glasses of wine tonight.”

“I plan on it,” she said.