The federal appellate judge is a favorite of the religious right.
President Donald Trump will nominate Judge Amy Coney Barrett, whom he previously appointed to the United States Court of Appeals for the Seventh Circuit, to replace the late Justice Ruth Bader Ginsburg.
Barrett is a staunch Catholic, a favorite of the religious right, and a former law clerk to conservative Justice Antonin Scalia. Her judicial record is fairly thin, owing to the fact that she’s only been a judge for about three years, but that short record suggests that she’ll be a reliable conservative if confirmed to the Supreme Court.
In one of her most revealing opinions, Barrett took an expansive view of the Second Amendment — dissenting to the right of two colleagues who were appointed by President Ronald Reagan.
Before joining the federal bench, Barrett was a law professor at the University of Notre Dame, and she frequently weighed in on many of the cultural fights that animate religious conservatism.
In a 2013 speech on Roe v. Wade, Barrett reportedly stated that life begins at conception — a common view among abortion opponents. She signed a 2012 statement claiming that an Obama administration policy requiring employee health plans to cover contraception was “a grave violation of religious freedom and cannot stand.” She also signed a 2015 statement to Catholic bishops endorsing the church’s conservative views on abortion, sexuality, and marriage.
And in a 2017 book review, Barrett seemed to criticize two Supreme Court decisions that largely upheld Obamacare against partisan attacks — suggesting that she is likely to vote to undercut the Affordable Care Act and potentially strip health care from millions of Americans in the process.
Barrett’s views are hardly atypical of a Trump appointee to the federal bench. And her professional credentials, while impressive, are shared by many other sitting judges. It’s likely that she rose to the top of Trump’s Supreme Court shortlist not because her record sets her apart from a dozen or more staunch conservatives on the federal bench, but because of an effort by Democrats to impugn Barrett’s fitness for the bench when she was originally nominated to the Seventh Circuit.
That botched effort allowed religious conservatives to paint Barrett as a persecuted martyr, and means that Trump’s choice of Barrett could double as an attempt to stoke resentment among Christian conservative voters shortly before the election.
Barrett’s 2017 confirmation hearing was a disaster for Democrats
Barrett is a devout Catholic, and she often grounds her conservative political views in her faith. She even co-authored a 1998 law review article exploring how Catholic judges should behave when the law’s demands come into conflict with their religious beliefs.
That somewhat dated law review article played a starring role in opposition research memos and other documents circulated by liberal groups opposed to Barrett’s 2017 nomination to the federal bench. Many of these groups feared that, if confirmed, Judge Barrett would place her personal opposition to abortion ahead of her judicial obligation to follow Supreme Court decisions such as Roe v. Wade.
It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith. But, in a disastrous exchange with future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself.
In the coming weeks, expect to see a short clip from Barrett’s 2017 confirmation hearing over and over again.
During Barrett’s 2017 hearing, Feinstein, the ranking Democrat on the Senate Judiciary Committee, drew a distinction between “law” and religious “dogma,” and accused Barrett of applying the later when she should apply the former. “The dogma lives loudly within you,” Feinstein told Barrett, “and that’s a concern.”
It was a remarkably tone-deaf remark, and it helped transform the obscure law-professor-turned-judge into a celebrity among the Christian right.
Feinstein, meanwhile, was cast as something akin to a tyrannical emperor tossing innocent Christians to the lions. “The notion that Catholics are so beholden to Rome as to be incapable of rendering independent judgment in public office has a long, sordid history,” wrote the Catholic conservative writer Sohrab Ahmari in a New York Times op-ed attacking Feinstein.
The origin of the “dogma” debacle appears to be an article, titled “Catholic Judges in Capital Cases,” which Barrett co-authored with law professor John H. Garvey in 1998 (Garvey is now the president of Catholic University). In that article, which was published shortly after Barrett graduated from law school, she and Garvey suggested that Catholic judges may have to recuse themselves from death penalty cases when their religious convictions against the death penalty conflict with their judicial obligation to enforce laws that provide for capital punishment.
The article also mentions the Catholic Church’s “absolute” opposition to abortion.
Many of Barrett’s opponents characterized this 22-year-old article as evidence that she would place the teachings of the Catholic Church ahead of her obligation to follow the law. As one liberal group claimed, Barrett “wrote specifically about the duty of judges to put their faith above the law.” The often-explicit fear underlying statements such as this one was that Barrett would undermine the right to an abortion if confirmed to the bench.
Had Feinstein merely expressed concerns about Barrett’s views on abortion, perhaps the future Supreme Court nominee would not have become such a celebrity among Christian conservatives. But by blurring the line between a legitimate attack on Barrett’s political views and an illegitimate attack on her Catholic faith, Feinstein transformed Barrett into a hero for the religious right.
Barrett has very conservative views on issues like abortion or LBGTQ rights
Barrett often expresses conservative political opinions in explicitly religious terms. In 2015, for example, she signed a letter to Catholic bishops that endorsed many of the church’s conservative teachings on abortion and sexuality.
In the words of that letter:
We give witness that the Church’s teachings—on the dignity of the human person and the value of human life from conception to natural death; on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman—provide a sure guide to the Christian life, promote women’s flourishing, and serve to protect the poor and most vulnerable among us.
This letter’s reference to “the value of human life from conception to natural death” leaves little doubt that Barrett personally opposes abortion. And its statements regarding “the complementarity of men and women” and “marriage and family founded on the indissoluble commitment of a man and a woman” suggest that Barrett personally opposes marriage equality — and potentially opposes extending other rights to LGBTQ people.
To be sure, the fact that Barrett personally opposes certain rights does not necessarily ensure she will vote to undermine those rights if confirmed to the Supreme Court. Justice William Brennan, for example, was a liberal icon who played a significant role in shaping the Court’s abortion rights decision in Roe v. Wade (1973). Yet he once told a biographer that he “wouldn’t under any circumstances condone an abortion in my private life.”
But Barrett’s limited judicial record suggests that her approach to constitutional interpretation aligns with her conservative political views. In Planned Parenthood v. Box (2019), Barrett joined a brief dissent arguing that her court should rehear a case that blocked an anti-abortion law before that law took effect. That opinion argued that “preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure” — suggesting that Barrett would have prevented her court from blocking the anti-abortion law at the heart of that case if given the chance.
Meanwhile, in Price v. City of Chicago (2019), Barrett joined a decision that reluctantly upheld a Chicago ordinance barring anti-abortion protesters from “approaching within eight feet of a person in the vicinity of an abortion clinic if their purpose is to engage in counseling, education, leafletting, handbilling, or protest.” The idea behind this ordinance is to prevent protesters from harassing patients entering abortion clinics.
Though the opinion in Price acknowledged that the Chicago ordinance is “nearly identical” to one that was previously upheld by the Supreme Court in Hill v. Colorado (2000), and thus must be upheld by a lower court, the Price opinion argued at length that Hill “is incompatible with current First Amendment doctrine.”
Should Barrett be confirmed to the Supreme Court, she would no longer be bound in the same way that lower court judges are bound by Supreme Court precedent. And thus she would be free to vote to overrule decisions like Hill — or even Roe.
Barrett is likely to vote to undercut Obamacare
In 2017, Barrett wrote a lengthy review of Our Republican Constitution, a deeply radical book by libertarian law professor Randy Barnett, which argues that huge swaths of American law are unconstitutional and should be struck down by judges.
To her credit, Barrett largely rejected Barnett’s proposal to turn much of American governance over to heavy-handed judges. While Barnett “offers a fulsome explanation of why we should mistrust legislatures,” the future Supreme Court nominee wrote, “he spends less time defending the institutional capacity of the courts.”
Toward the end of her review, however, Barrett does single out two cases — NFIB v. Sebelius (2012) and King v. Burwell (2015) — and suggests that the courts should have taken a more aggressive approach in those decisions. Both NFIB and King largely rejected partisan attacks on the Affordable Care Act.
In NFIB, Judge Barrett writes, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Likewise, Barrett appears to endorse Justice Scalia’s dissenting opinion in King, which attacks the majority for its supposed willingness to “rewrite” Obamacare in order to save it.
“For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair minded application of the rule of law, which means going where the law leads,” Barrett writes. “By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.”
Many fair-minded lawyers — including the six justices who joined the majority in King — would no doubt take issue with Barrett’s suggestion that King distorted the text of Obamacare. But if Barrett is confirmed to the Supreme Court, it won’t really matter what those lawyers think. If Barrett is a justice, she’ll be free to vote against Obamacare even if her reading of the statute is idiosyncratic.
Barrett is unlikely to follow past decisions upholding Obamacare simply out of loyalty to precedent. In a 2013 article, she suggested that justices should not feel bound by precedents that they strongly disagree with.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in that piece. Thus, if Barrett concludes that a decision like NFIB is “clearly” in conflict with the Constitution, she is likely to ignore it.
Barrett is likely to expand the Second Amendment significantly
Four members of the current Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — have all called for their Court to take a more expansive approach to the Second Amendment. If confirmed, Barrett is likely to provide the fifth vote for this project.
In Kanter v. Barr (2019), Barrett sat on a three-judge panel considering a case brought by a former felon who claimed that he had a Second Amendment right to own a gun, despite his felony conviction. Notably, both of the other judges on this panel were Reagan appointees.
The two Reagan appointees joined an opinion by Judge Joel Flaum arguing that the plaintiff in Kanter, who’d previously been convicted of mail fraud, was not exempt from the general rule barring ex-felons from carrying firearms. Flaum’s opinion pointed to the Supreme Court’s decision in District of Columbia v. Heller (2008), which held that “nothing in [the Supreme Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”
Barrett dissented. The crux of her argument is that “longstanding prohibitions on the possession of firearms by felons” should be shrunk to only “prohibit dangerous people from possessing guns.” Thus, a person convicted of a nonviolent crime like mail fraud would most likely be allowed to own a gun.
As the two judges in the majority noted, “several courts of appeals have concluded that nonviolent felons are outside the scope of the Second Amendment.” And those two judges are, themselves, right-leaning judges appointed by a conservative president. So Barrett’s approach to the Second Amendment appears to place her well to the right of the consensus within the judiciary.
If Barrett is confirmed, however, that consensus will no longer matter. She will sit at the apex of the judiciary.
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Author: Ian Millhiser
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