Assessing Amy Coney Barrett’s Sterling Character and the Road to the Supreme Court
NEWS ANALYSIS: Catholic mother of seven would fill the seat vacated by Ruth Bader Ginsburg, who died Sept. 18.
WASHINGTON — In 1998, when Amy Coney clerked for the late U.S. Supreme Court Justice Antonin Scalia, the Louisiana native “stood out,” even in a group of 36 top young lawyers recruited from the best U.S. law schools.
“She was brilliant and was seen as someone to be taken seriously among the clerks, and it was not a slouchy bunch,” remembered Nicole Garnett, a professor at Notre Dame Law School who clerked for Justice Clarence Thomas during the same term.
But academic smarts didn’t fully explain her appeal. Rather, while most of the clerks were consumed with work and future career plans, Amy Coney found time to volunteer at Mother Teresa’s home for AIDS patients and discerned how she could best approach her legal vocation and family life after her upcoming marriage to fellow Catholic and Notre Dame law student Jesse Barrett.
“She was asking, ‘How will I live my life?’ And it was clear to me that her faith was influencing those questions in a positive way,” said Garnett. “All of us, not only people who were religious, admired that about her. She has a wellspring of generosity and an incredible amount of energy.”
Now that President Donald Trump has nominated Judge Barrett, 48, to fill the seat left vacant by the Sept. 18 death of Justice Ruth Bader Ginsburg, Garnett and other supporters hope that her top-notch academic and judicial credentials, along with her sterling character and life choices as a mother of seven children, will secure her confirmation in the Senate.
Trump formally announced Judge Barrett’s nomination in a Sept. 26 Rose Garden ceremony, where he praised the jurist as “a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution.” Barrett, in her acceptance speech, recognized Ginsburg’s legacy as a public servant of “enormous talent and consequence,” and she singled out her family, describing her children as her “great joy,” and her husband, a lawyer in private practice, as a “superb” spouse who does “far more than his share of the work.”
But those present at the ceremony said the most important takeaway was Barrett’s ringing endorsement of Scalia’s application of originalist jurisprudence.
“[H]is judicial philosophy is mine, too: A judge must apply the law as written,” she said. “Judges are not policy makers, and they must be resolute in setting aside any policy views they might hold.”
John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government, was present at the ceremony. He underscored the significance of Barrett’s statement.
“This says she is an originalist and textualist,” Malcolm told the Register. “She believes the Constitution was a compact with people of the time about how power should be wielded by the three branches of the federal government and by the states and what powers should be left to the people.
“She is not going to pour into the Constitution or any statute what her personal beliefs are. She will rule according to the written word as it was understood when the statute was passed or when the constitutional provision was ratified.”
The ceremony marking Barrett’s nomination was the first step in President Trump’s swift-moving response to the death of Justice Ginsburg, less than two months before the 2020 election in a climate where Republicans are battling for the White House and Senate and Democrats are furious over the GOP’s decision to move forward with the confirmation before the election.
The president had long been impressed with Barrett’s qualifications, and he almost chose her to fill the seat left vacant after Justice Anthony Kennedy’s resignation, according to media reports.
Barrett emerged as a conservative icon after she was grilled about her faith-based views on abortion during her 2017 Senate confirmation hearings for the 7th Circuit. And her brief but productive tenure on the appellate bench only strengthened her standing at the White House.
At Notre Dame Law School, where Barrett earned her law degree and taught for 15 years, her friends expressed enthusiastic support for her nomination, but also a measure of trepidation.
“People are anxious, and they don’t want their friend to go through a savage process,” O. Carter Snead, a law professor at Notre Dame, told the Register.
No doubt, the combative Kavanaugh hearings have stirred fears that the process to confirm Barrett will be very rough. And the jurist appeared to be steeling herself for the battle ahead when she pledged during her acceptance speech to approach the process with “humility and courage.”
If confirmed, she will be the third justice named by Trump, a move that is expected to solidify a five-member conservative wing dominated by originalists and textualists, with Chief Justice Roberts as the new swing vote and three liberal justices now in the minority.
Born in Metairie, Louisiana, and a graduate of a Catholic high school, Barrett received her undergraduate degree from Rhodes College, before heading to Notre Dame on a full scholarship for law school, where she graduated first in her class in 1997.
John Garvey, the president of The Catholic University of America and a constitutional scholar who taught at Notre Dame when Barrett was a student, recalled her remarkable intellectual gifts in a column for The Washington Post, which noted his “one-line letter of recommendation for her to Justice Antonin Scalia: ‘Amy Coney is the best student I ever had.’”
After her Supreme Court clerkship, Barrett spent a few years in private practice, before returning to Notre Dame to teach, earning the “Distinguished Professor of the Year” award three times. Barrett published widely in law journals and was a highly respected expert on the Constitution well before Trump nominated her to the 7th Circuit.
At the acrimonious hearing, she was questioned about her past writings that explored how a Catholic jurist might handle legal cases that dealt with serious moral issues like abortion, capital punishment and euthanasia.
The questions were prompted, in part, by a 1998 Marquette Law Review article, “Catholic Judges in Capital Cases,” which she co-wrote with Garvey. The article suggested that Catholic teachings regarding the immorality of capital punishment might constitute a reason for Catholic judges to disqualify themselves from hearing some death-penalty cases.
But Barrett told the Senate Judiciary Committee that she did not believe it was “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law,” and she promised that her position on abortion “or any other question will have no bearing on the discharge of my duties as a judge.”
Still, Sen. Dianne Feinstein, D-Calif., insisted that Barrett had a “long history of believing that religious beliefs should prevail.”
Added Feinstein: “[T]he conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.” As the Senate was preparing to vote on Barrett’s confirmation, her participation in a “charismatic Christian community” called People of Praise drew additional scrutiny, with a New York Times article raising questions about whether she would be unduly influenced by the group’s adherence to biblical teachings on marriage and related matters.
In September, media outlets tapped into this line of argument, and Notre Dame’s O. Carter Snead, who is not a member of People of Praise, dismissed this characterization of the Christian charismatic community as a reflection of reporters’ lack of exposure to faith communities.
“If you spend any time with People of Praise you meet kind people who love their neighbor and take care of others,” he said. “It is a lay renewal movement.”
As journalists drill into Barrett’s background, Snead and other Notre Dame colleagues have celebrated her gifts as a teacher, friend, mentor and mother of seven children, including two adopted from Haiti and a biological child with Down syndrome. “She is the first to deliver a meal when someone is sick and the first to drive children to soccer practice,” said Nicole Garnett.
She described Barrett’s efforts to integrate rather than segregate family and professional responsibilities, with both spouses sharing childrearing and household chores, as a model for a more “human” vision of life. Barrett’s colleagues have also continued to dispel caricatures of the jurist as a religious believer who would be guided by her faith rather than constitutional principles.
In a commencement speech for Notre Dame Law School, Barrett had reflected on the practice of the law as a form of Christian vocation, and her critics have pounced on her words as further evidence of the disturbing influence of her faith on her judicial opinions.
But Snead explained that her remarks affirmed Notre Dame Law School’s own mission.
“The role of being a lawyer,” he said, “is actually to serve others through the mechanism of the law, to be a faithful servant of the law.”
Snead has also addressed claims about the judge’s supposed eagerness to overturn legal precedent, including Roe v. Wade.
Barrett’s originalist jurisprudence “can stand in tension with the doctrine of stare decisis, which counsels justices to account for pragmatic considerations, such as the disruptive effects of upending precedents Americans have come to rely on, before reversing a prior decision,” explained Snead in a Washington Post column.
But he did not predict how she would rule in an actual case that challenged legal precedent. Barrett’s writings show respect for precedent, while suggesting a cautious willingness to reassess decisions that were poorly reasoned.
“[I]n a system of precedent, the new majority bears the weight of explaining why the constitutional vision of their predecessors was flawed and of making the case as to why theirs better captures the meaning of our fundamental law,” Barrett wrote in “Precedent and Jurisprudential Disagreement.”
Senate Democrats and progressive legal scholars, for their part, are expected to present such writings as evidence of Barrett’s willingness to reconsider Roe v. Wade. In fact, she has not ruled on abortion since her 2017 confirmation hearings, though she has weighed in on two abortion cases, both times by supporting appeals for the full bench to rehear a case.
But as Joe Biden makes outreach to Catholics a key element of his presidential campaign, Senate Democrats have been advised to avoid attacks on Barrett’s religion. And just days after her nomination, Senate Minority leader Chuck Schumer, D-N.Y., announced that “not a single Democrat will … make religious beliefs an issue” during Barrett’s confirmation hearings.
Instead, Senate Democrats and the Biden-Harris campaign will frame Barrett’s nomination as a major threat to the Affordable Care Act, with the court slated to hear another challenge to “Obamacare” this term and Barrett on record criticizing Chief Justice Roberts’ majority opinion in a 2012 decision that ensured the law’s survival.
The hearings are expected to begin by Oct. 12, lasting three to four days; and in the weeks ahead, Republicans will be mobilizing to defend her nomination.
At the same time, the pro-life movement is eager to have a compelling female jurist like Barrett in the conservative majority, if and when a major abortion case arrives before the high court and the justices are asked to reconsider the legal and cultural arguments that undergird Roe and Planned Parenthood v. Casey, the 1992 landmark decision that stated that women’s equality depends in part on “their ability to control their reproductive lives” and barred state laws that placed an undue burden on access to abortion.
“It will be very difficult to persuade Amy Coney Barrett that abortion is a necessary precondition to women’s full participation in society,” said Teresa Collett, a law professor at the University of St. Thomas, who noted that this very argument was “the position of Justice O’Connor in the plurality opinion of Planned Parenthood v. Casey.
“Ginsburg also operated on the premise that abortion is necessary for women’s equality,” Collett told the Register. “But I do not see Judge Barrett finding that to be empirically true or persuasive.”