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Supreme Court Nominee Amy Coney Barrett and the Administrative State

With the Senate Judiciary Committee officially approving Amy Coney Barrett’s Supreme Court nomination, the vote now goes before the whole Senate, with a final vote expected Monday. With the likelihood of a Justice Barrett growing ever closer, speculation has run rampant about her position on hot-button administrative law issues like deference and delegation. But the short answer is: no one really knows where she stands on these issues.

President Trump officially nominated 7th Circuit Judge Amy Coney Barrett for the Supreme Court in late September. Unlike the nominees preceding her, Judge Barrett lacks a clear track record on her position towards the growth of the administrative state. The 7th circuit simply does not get many administrative law cases and her academic writing, while prolific, does not address administrative law issues.

But here is what we do know:

  • Judge Barrett is a former Justice Scalia clerk who openly ascribes to her mentor’s textualist and originalist views.

As one Cato Institute podcast notes, this could mean just about anything. Justice Gorsuch openly ascribes to Justice Scalia’s philosophy as well, but his take on textualism more frequently aligns with Justice Thomas. Justice Scalia did not agree with most conservatives in his view of the administrative state. He strongly supported Chevron deference, at least initially, and tended to take an expansive view of delegation.

But we also know:

  • Judge Barrett has published multiple articles on her view of stare decisis where she promotes a weak presumption of stare decisis in constitutional law cases.

In other words, if a case involving a constitutional law issue was decided incorrectly, justices shouldn’t automatically defer to it just because it is settled law. This might make her open to changes in “settled” administrative law, particularly where it implicates separation of powers concerns. But she also urges more caution when upending settled law, seemingly more hesitant with it than a textualist like Justice Thomas.

While fear mongering clouds both sides of this nomination process, many also argue that her position won’t change much for the administrative state.

One thing is for sure: at his point, there is simply not enough to go on to speculate how her decisions might impact the regulated community.