By Rodney F. Tonkovic, J.D.
President Trump has nominated Seventh Circuit Judge Amy Coney Barrett to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. As the Court returns from mourning Justice Ginsburg and prepares for the October 2020 term, confirmation hearings for the potential ninth Justice are scheduled to begin soon. While the larger implications of Judge Barrett's possible ascent to the Supreme Court will be covered in other publications, this post will examine her potential impact on securities law.
Confirmation battle. Judge Barrett was nominated to the Seventh Circuit by President Trump in May 2017. During the confirmation hearing on September 6, 2017, Democratic leaders opposed Judge Barrett’s nomination on the grounds that she had little appellate courtroom experience, over concerns about her views on stare decicis, and over her religious views. Republican leaders defended Judge Barrett’s nomination and alleged that Democrats were trying to apply a religious test to her nomination that is forbidden by Article VI of the U.S. Constitution. The Senate confirmed Judge Barrett by a vote of 55-43, and she received her commission on November 2, 2017.
Sen. Lindsey Graham (R-SC), chair of the Senate Judiciary Committee, has indicated that Judge Barrett's confirmation hearings will begin on October 12, 2020. In an expedited process, October 13th and 14th will be devoted to questioning, and the mark-up process will start on October 15th, Graham said. As this appointment is expected to tip the ideological balance of the Court toward the conservative side, the hearings will surely be contentious. As of this writing, battle lines are still being drawn, although it is likely the arguments for and against will resemble the positions taken during Judge Barrett's 2017 hearings.
Another wrinkle is the nomination's proximity to the presidential election. Senate Majority Leader Mitch McConnell (R-Ky) issued a statement in which he sought to distinguish his refusal to give President Barack Obama's last Supreme nominee Senate floor vote during an election year and his pledge that Justice Ginsburg’s replacement will get such a vote. After the nomination, McConnell applauded the selection of Judge Barrett and confirmed that a vote will occur in the coming weeks. Democrat leaders, such as House Majority Leader Steny Hoyer (D-Md), have noted that Justice Ginsburg had expressed the view that she should not be replaced until the winner of the 2020 presidential election has been sworn in. Other Democrats, including presidential candidate Joe Biden, have similarly criticized the timing of the nomination. Some have taken the position that they view the nomination as illegitimate and will not meet with Judge Barrett, and procedural tools may be employed that could delay the hearings.
Barrett's jurisprudence. In the upcoming term, the Court is expected to address several important securities law cases. For example, the Court will again face the question of the boundaries of disgorgement in Jalbert v. SEC, which questions whether disgorgement awards violate separation-of-powers principles; this case has been distributed for conference on September 29, 2020, and an analogous case involving the FTC has yet to be addressed. Other petitions awaiting disposition concern the Basic presumption, jurisdiction over ALJ challenges, and insider trading.
Having been a judge only a short while, Judge Barrett has authored no published opinions on federal securities matters. She has sat on the panel for some precedential matters, as well as a number of nonprecedential orders, but these offer no real insight into her views on the securities laws.
Because there are no substantive decisions on securities law by Judge Barrett, her views are difficult to discern at this point. She has, however, written and spoken more generally concerning her views on the rule of the judiciary, and these views could factor into her treatment of Supreme Court precedent. Most recently, during her speech accepting the nomination, Judge Barrett remarked on her clerkship with Justice Scalia, noting his "incalculable influence" on her life. "His judicial philosophy is mine, too: A judge must apply the law as written," she said. Judges are not policymakers, she continued, and must set aside any such views that they might hold.
As a professor, Judge Barrett wrote several law review articles setting out forth her views of stare decisis and other jurisprudential topics. In a 2017 article, for example, she examined the tension between originalism and stare decisis in the context of Justice Scalia's concession that stare decisis was a "pragmatic exception" to his originalist philosophy. The late Justice, she writes, distinguished between decisional theory and results; in other words, leaving the result of a precedent in place versus applying the logic of the precedent to a new context. In addition, Judge Barrett observed, in this article and in an earlier piece, that there are features of the judicial system that keep most challenges to precedent off the Court's docket. And, stability is fostered by an implicit assumption that precedent is correct, unless its validity is explicitly put on the table.
The above is presented with the obvious caveat that it is impossible to predict the exact approach to be taken by Judge Barrett should she be confirmed and if she opines on securities-related matters. Even Judge Barrett's mentor, she acknowledged in the 2017 article, described himself as a "faint-hearted originalist" willing to make pragmatic exceptions.
Professorship and clerk experience. Judge Barrett was nominated to fill a vacant seat on the U.S. Court of Appeals for the Seventh Circuit and was confirmed by the Senate on October 31, 2017. Before rising to the bench, Judge Barrett taught at her alma mater, Notre Dame Law School, starting in 2002. She has continued to teach while sitting as a judge in the areas of federal courts, constitutional law, and statutory interpretation. Judge Barrett also has held several visiting professorships.
Prior to her career in academia, Judge Barrett was an associate at Miller, Cassidy, Larroca & Lewin. Before entering private practice, she clerked for Supreme Court Justice Antonin Scalia (1998-1999) and for the Hon. Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit (1997-1998). Judge Barrett also served on the federal Advisory Committee on Appellate Rules for nearly six years. The 48-year old jurist is a resident of South Bend, Indiana.