Judge Barrett on a Few Issues

Judicial philosophy from an article entitled 5 things to know about Amy Coney Barrett:

“If the judge is willing not to apply the law but to decide cases in a line, in accordance with personal preference rather than the law, then she’s not actually functioning as a judge at all. She’s functioning as a policymaker,” Barrett explained.

“And I would have had no interest in the job if the job was about policymaking and about making policy decisions,” the judge said. “My interest is in contributing to our tradition of judges upholding the rule of law.”

“There’s a lot of talk these days about the courts being mere political institutions. But if we reduce the courts to mere politics, then why do we need them? We already have politicians. Courts are not arenas for politics. Courts are places where judges discharge the duty to uphold the rule of law,” she said.

Barrett went on to cite Scalia, who “used to say that a judge who likes every result that she reaches is not a very good judge. In fact, she’s a very bad judge. The law simply does not align with a judge’s political preference or personal preference in every case.”

A key dissent on the Second Amendment:

[On the Second Amendment] "History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," she wrote in Kanter v. Barr, applying an originalist approach that looked to the 18th-century intentions. "But that power extends only to people who are dangerous. Founding legislatures did not strip felons of the right to bear arms simply because of their status as felons." 

Barrett concluded, "Holding that the ban is constitutional ... does not put the government through its paces, but instead treats the Second Amendment as a second-class right."

A law review article on Obamacare or the Affordable Care Act:

"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," Barrett wrote. "He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power."

At another point, Barrett refers to "Roberts' devotion to constitutional avoidance." 

The court is scheduled to take up the latest challenge to Obamacare on November 10.

On abortion:

Barrett was asked if she believed abortion is always immoral in the 2017 White House questionnaire, the Associated Press reported.

“If I am confirmed (to the 7th Circuit), my views on this or any other question will have no bearing on the discharge of my duties as a judge,” she said.

She has also said that she believes life begins at conception, according to Notre Dame magazine, and signed a 2015 joint letter that affirmed “the value of human life from conception to natural death.”

Barrett suggested in 2016 during a talk at Jacksonville University that though a woman’s right to abortion, as understood by Roe v. Wade, may not change, the “question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that would change,” the Times reported.

“If Roe v. Wade were coming against the court for the first time, I suspect that she would say there is nothing in the Constitution about this, and if you want a constitutional right to an abortion, people are free to add one to the Constitution, but it is not in there,” President of Catholic University John Garvey, who taught Barrett in law school, told the times. “That is not the question now. We have had 45 years of abortion jurisprudence.”

Law Professors for Barrett

A brilliant professor possessing a great legal mind, writes University of Notre Dame Law Professor O. Carter Snead in the Washington Post:

She has an incandescent mind that has won the admiration of colleagues across the ideological spectrum. Harvard law professor Noah Feldman, a respected liberal legal commentator who, like Barrett, was a Supreme Court clerk during the October 1998 term, has observed that Barrett may well have been the smartest person in that year’s pool of top young legal talent. “Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities,” he wrote in 2018, “is going to lose. Badly.” Barrett has confirmed her brilliance may times over as both a scholar and a teacher, for which she has been recognized three times by Notre Dame law students as professor of the year.

Scalia Law Professor Helen Alvare:

Amy Coney Barrett will inspire several generations of female lawyers and academics for many of the same reasons Ruth Bader Ginsburg did. Her intellectual excellence and her dedication throughout decades to the unrelenting and high-stakes work of lawyering, writing, teaching and judging make her a role model for lawyers generally.

Realistically, though, female attorneys are still prone to asking themselves again and again whether they can “do justice” to both their work and their personal responsibilities. For these women, Judge Barrett’s example, like Justice Ginsburg’s, will be a touchstone for many years.

Harvard Law Professor Noah Feldman writes in an op-ed entitled Amy Coney Barrett Deserves to Be on the Supreme Court:

Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.

To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.

Religious Bigotry Against Barrett and a Response

Senator Feinstein is the Ranking Member of the Senate Judiciary Committee and infamously said to Judge Barrett, “the dogma lives loudly within you,” regarding her Catholic faith. 

Barrett's devout Catholic faith has been the target of Democrats, even before her name was floated to succeed Ginsburg on the court.

In December 2017, when she was appointed to the 7th Circuit Court of Appeals, Barrett had to assert numerous times that her faith would not influence her jurisprudence. “Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different,” Sen. Dianne Feinstein, ranking member of the Senate Judiciary Committee, told Barrett. 

“And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.”

The senator told Barrett she was a “controversial” nominee, “because you have a long history of believing that your religious beliefs should prevail” over the law.

As George Washington University Law Professor Jonathan Turley writes in response to this and the attacks of Newsweek and Reuters as an inspiration for the dystopian Handmaid's Tale:

Barrett, like Ginsburg, can believe deeply in the teachings of her faith and even support religious legal dogma in her private life without advocating orthodoxy from the bench. Further, many believe morality is relevant to the law. For the record, I have written and litigated in opposition to law based on morality. Barrett is an intellectual who has written on morality and the law. Justice Neil Gorsuch also has written on this issue.

Even as someone who is fervently secular in my views, I prefer someone who has thought deeply over these issues even when they have reached opposing conclusions. Nominations have often favored jurists who never uttered an interesting thought in their careers. The Supreme Court should be a place for those, such as Ginsburg, who rise to it with well articulated jurisprudence. While both Harvard professor Noah Feldman and I testified on opposing sides in the impeachment of President Trump, we have both praised Barrett for her intellect and writings in her legal career.

More on Barrett

Judicial confirmation expert and frequent RNLA guest speaker (including a 9/25 webinar) Ed Whelan has written a number of short articles on Judge Barrett and the issues:

Judge Barrett on Stare Decisis

Ruth Marcus Badly Distorts Judge Barrett on Stare Decisis

Judge Barrett on Title IX Protections for Accused Students

Judge Barrett on Textualism and Originalism

Judge Barrett on the Second Amendment

Judge Barrett’s Record on Abortion

Liberal Legal All-Stars on Barrett’s ‘Remarkable Intellect and Character’

On Judge Barrett and Baseless Claims About Recusal

Liberal Lockstep Error on Judge Barrett’s Record?

Lastly, as a Replacement for Justice Ruth Bader Ginsburg:

Justice Barrett’s nomination could arguably be the most consequential since President George Bush appointed Judge Clarence Thomas to succeed Justice Thurgood Marshall in 1991, replacing the court’s most liberal member with a jurist who would prove to be its most conservative. Judge Barrett, who was seen as the most committed conservative on Mr. Trump’s list of finalists, would similarly take the seat of a liberal justice in a sharp philosophical shift.