Amy, Tell Me What You’re Gonna Do: Part 4

Judge Amy Coney Barrett mets with Senator Kevin Cramer as part of her confirmation process. Photo by US Senate Office of Kevin Cramer [Public Domain]

Over the past week or so, I have reviewed and analyzed eight 7th Circuit case opinions, both majority and dissents, written by Amy Coney Barrett. There are over 100; I have read or scanned most of them, and tried to choose a wide variety of topic areas to get a feel for her approach to the law. But some of the criticism I have received for my endeavor is that it is her extrajudicial writings that give the greatest cause for concern, so I’ll examine that to finish up the series.

Barrett has spent more time as a legal scholar than as a practitioner. In fact, except for 3 years in private practice, she has spent the entirety of her career prior her appointment to the 7th Circuit in 2017 either as a law clerk or a law professor. Because of the path of her career, she has compiled quite a stack of law review articles and other legal commentary. Scholarship is not the same as case law; one is free to speculate and theorize on what the law should be, free from the constraints of what the law is. Therefore, some of her writings have shaped public opinion about her, for better or worse.

In 1998, the year following her graduation from law school at Notre Dame, Barrett co-authored a law review article entitled “Catholic Judges in Capital Cases” in which she examined the conflict between what she called “orthodox” (small “o”) Catholicism and the judge’s role in imposing the death sentence. Barrett’s ultimate conclusion was that a Catholic judge who does not believe in the death penalty for religious reasons should not play a role in the sentencing phase of a capital case. She recommends that a judge alert the parties as soon as the prosecution gives notice of its intent to seek the death penalty that he or she will step aside following the “guilt” phase of the trial. Her article is very nuanced about the many roles a judge plays during the trial, the sentencing phase, and appellate review, and the level of culpability owned by each in effectuating a death sentence. From the religious perspective, she is of the opinion that an orthodox Catholic judge is morally precluded from issuing a sentencing order for capital punishment. From a legal standpoint, she recognizes that the public, the defendant, and the prosecution, are assured an impartial judge, which requires self-recusal by the conscientious judge who knows she cannot be complicit in the issuance of the ultimate penalty.

Barrett sees things differently with appellate judges. She considers the sentencing judge and a Supreme Court justice to be the opposite poles of culpability, seeing the refusal of a justice to grant certiorari to a last minute death row appeal a too far removed from the imposition of sentence to be of moral concern. To draw this distinction, she describes “formal” and “material” cooperation with evil. Formal is the intentional, direct causation of the evil; material is an act that, while it contributes to the ultimate evil, is not done for the purpose of the evil outcome. An appellate judge deciding whether or not there is error does so knowing that affirming a conviction will keep the defendant on death row. But his determination on the questions of error would be the same, whether the sentence had been death or life in prison: “To affirm a sentence is not to approve it, but to say that the trial court did its job.” In Barrett’s view, then, an appellate court does not “direct or promote” an execution, and therefore an orthodox Catholic judge need not recuse him or herself from capital appeals.

Based on this article, I do not expect Barrett to recuse herself from cases that implicate her faith, including both capital cases and abortion. Nor does she find fault with the appointment of an ideologue to the bench, generally. From the article:

Justice Marshall was chosen by Lyndon Johnson precisely because he was a hero in the fight for racial equality. It would be odd if those principles kept him from sitting in school desegregation cases, even if they made his judgments fairly predictable.

This is not to say that we expect or want judges to let personal convictions determine their judgment on all collateral questions. There are easy cases. We expect judges to recognize them and follow the law even if it runs against their inclination. Justice Douglas routinely voted against the Internal Revenue Service in tax cases no matter what the issue was. This is unacceptable judicial behavior.

A prescient thought from a newly graduated lawyer whose religious beliefs would someday be the center of a controversy over her suitability for appointment to the highest court.

This article also contains her oft-quoted statement that “abortion is always immoral.” In the context of this paper, she discusses abortion and euthanasia in contrast with capital punishment, drawing a distinction between the innocent and the non-innocent. She doesn’t conclude that capital punishment is sometimes moral, but sets forth arguments which would support the idea. Her conclusion, after a deep discussion of Catholic teachings, is that despite that distinction, an orthodox Catholic may not be a part of — offer material cooperation to –any purposeful taking of human life.

However, when it comes to the duty of a judge to recuse herself from a case because of religious beliefs, she argues in a footnote against doing so on abortion cases:

Michael Paulsen makes an argument much like this in connection with abortion.
He concludes that “where there is no honest, legitimate alternative for deciding the case but
to follow positive law supporting the right to commit an abortion,” the judge should recuse
himself. Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert
M. Cover’s Justice Accused, 7 J. L. & REL. 33,79 (1990). The abortion case is a bit easier, we
think. Both the state and the unborn child’s mother are (at least typically) acting with gross
unfairness to the unborn child, whereas the moral objection to capital punishment is not that
it is unfair to the offender.

In other words, she thinks that while an orthodox Catholic judge has a duty to recuse from death penalty cases because he or she cannot be impartial, she has no such compunction about that same judge deciding matters related to abortion. Her one sentence argument, which seems to differentiate based on matters of fairness, is hard to square with her overall conclusion that a religious moral objection to capital punishment, even when execution might seem warranted, requires recusal.

While Barrett has not yet ruled directly on matters of abortion rights, she has shown a willingness to do so. When a case comes to a Circuit Court of Appeal, it is initially heard by a three-judge panel. After a ruling is issued, the losing party can petition the court to rehear the case en banc, which means before all the judges of the circuit. The judges vote on whether to accept these petitions; Barrett has voted in favor of rehearing two cases involving abortion: one regarding parental consent and one involving disposal of fetal remains. In the latter, the three judge panel reviewed and struck down two provisions of Indiana law: the requirement for burial of fetal remains, and a prohibition of abortion on the basis of sex, race, or disability. The state petitioned for rehearing en banc only as to the fetal remains provision. Judge Easterbrook wrote a dissent from the decision to deny rehearing, in which he spent much time discussing what he called the “eugenic abortion” statute that was not on appeal. Barrett and two others signed on to the dissent.

It is worth noting, however, that she did sit on the panel in a free-speech case concerning a law requiring so-called “sidewalk counselors” – protesters who accost patients trying to enter abortion clinics- to keep at least 8 feet away from their targets. Barrett did not write the decision in that case, but she voted with the majority who upheld the law, citing 2000’s US v. Hill which upheld a very similar Colorado law.

Barrett has never written specifically on the merits of Roe v Wade. She has spoken about it, however. In 2016 at an event at Jacksonville University, she expressed her belief that Roe would not be overturned by the Supreme Court¹, but added that she did foresee restrictions:

I don’t think the core case — Roe’s core holding that, you know, women have a right to an abortion — I don’t think that would change,” Barrett said. “But I think 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.

This leads well into another legal topic on which Barrett has written extensively: stare decisis, the doctrine that requires the Court to apply and respect precedent. In 2003, she wrote for the Notre Dame Law Review, arguing that inflexible application of stare decisis effectively deprives litigants of their right to due process. The article focuses on federal appeals courts, where she finds adherence to precedent to be the most strict and burdensome on litigants, but she notes that both appeals courts and the Supreme Court will not overturn precedent without “special justification”, which she admits does not include error on its own:

To be overruled, a case should be not only erroneous, but also unworkable. Overruling it should not tarnish the public’s perception of the judiciary or upset reliance interests. The very strong presumption in the federal courts is that precedent will stand. In certain categories of cases, courts have strengthened this presumption even further. The Supreme Court and many
of the courts of appeals have adopted a “super strong” presumption of irreversibility for statutory precedent on the theory that Congress’s failure to amend a statute in response to
a judicial interpretation of it reflects approval of that interpretation.”

It is often argued that even a minimally skilled judge can find wiggle room to differentiate a case from a seemingly applicable precedent when she wants to. Barrett admits as much, but dismisses the idea that this type of disingenuousness is the rule rather than an exception. Nevertheless, she concludes by advocating a more flexible use of stare decisis:

Generally speaking, if a litigant demonstrates that a prior decision clearly misinterprets the
statutory or constitutional provision it purports to interpret, the court should overrule the precedent. Reliance interests count, but they count far less when precedent clearly exceeds a
court’s interpretive authority than they do when precedent, though perhaps not the ideal choice, was nonetheless within the court’s discretion.

This is relevant to the discussions of her possible view of Roe. Her mentor and former boss, Antonin Scalia, was very outspoken in his opposition to the idea of “substantive due process”, on which Roe was based. Substantive due process is the legal concept that there are some rights that are so sacred that they cannot be taken away, even via the democratic process of legislation. Access to abortion was deemed to be such a right. This is the basis for Scalia’s position that Roe was a badly reasoned decision; his view is born of a textualist and originalist interpretation of the constitution- an approach to the law that Barrett shares. One can conclude that she agrees with Scalia’s view of Roe (and by extension, Planned Parenthood v. Casey, which superseded Roe and is the actual current precedent) as a legally flawed decision. But would she, given the opportunity, vote to overturn it?

Scalia would have. He said so many times. That must be kept in mind when considering Barrett’s statement that she didn’t believe Roe would be overturned. She said so at a time when the Court was liberal-leaning, when it looked as though Hillary Clinton would succeed Obama in the White House, and Barrett didn’t know she might ever have the opportunity to have a say in revisiting Roe or Casey. If she were to vote to overrule Roe and Casey, one could expect her to invoke as justification her originalist opposition to substantive due process as a whole.

In a footnote here (page 13) she explains that Roe and Casey are not so-called “super precedents” because the abortion debate has not abated over the years. Contrast that notion with Brown v. Board of Education or my own pet favorite, Virginia v. West Virginia, both cases which rest on arguably constitutionally shaky foundations, but whose outcomes are (overwhelmingly if not completely) firmly established. No one is seriously arguing for a return to separate but equal schools for Black children, or to take away West Virginia’s statehood, in the modern era. This is not so for the issue of abortion; it would not be surprising if Barrett declined to extend a respect for stare decisis, should a relevant case come before her.

There is a fear that Barrett will threaten Obergefell v. Hodge, overturning the legal marriage of over a million Americans. She has said very little on the topic and has never ruled on it. Much of the writing that insists she is a threat refers to part of her lecture at Jacksonville, linked above, in which she “defends” the justices who dissented from Obergefell. However, what Barrett did in her talk was to explain the dissent, not endorse or praise it. It is certainly possible that she agrees with the dissent; Scalia’s dissent in the case was, like his quarrel with Roe, based upon his objection to substantive due process. In both cases, he believes it is up to the states. But it is worth remembering that acceptance of gay marriage is much more widespread than acceptance of abortion rights and it would be unsurprising to me if Barrett took the “super precedent” escape hatch if the issue comes before her.

It seems more likely that she would decide in favor of “religious liberty” in sexual orientation discrimination cases, but if we are looking to Scalia as a bellwether for what to expect from Barrett, that is far from a given. Scalia wrote the majority opinion in Employment Division v Smith in 1990, holding that an employer may terminate an employee for the use of peyote, an illegal substance, even if such usage is part of the employee’s religion. The opinion held that one is not free to break the law without consequence, even if the criminal act is part of a religious practice. Wrote Scalia: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

We may not have to wait long to find out how Barrett would decide a case like this; on November 4th, the Court is set to hear arguments in Fulton v. City of Philadelphia, in which a Catholic foster agency argues it should be permitted to exclude LGBTQ+ parents on the basis of the agency’s religious affiliation. Barrett may be on the bench by then.

Finally, I will mention just briefly the intense speculation about Barrett’s personal faith, groups with which she is associated, and other matters of her personal life, only to say that I will not give it any weight. I do not believe she is a puppet of the Church or a slave to her husband; a person who reaches her place in life does not do so by lacking a will of her own. She is a brilliant woman, a fact that is made obvious in her writings and her lectures, which speak for her more loudly than any media speculation or punditry.

Conclusion

So concludes my long, deep dive into Barrett’s body of work. I have, of course, found areas in which I disagree with her approach, as I have stated in previous installments of this series. Most significantly, I find her too willing to favor the government in some matters. It is a common criticism I have with the judiciary in general.

I am not concerned with her religion or how she practices it, who her friends are, or where she lived when she was in law school. I am concerned with how she applies the law in cases that come before her. As with every other justice whose opinions I have read multiple, except Alito, I suspect there will be times when I agree with her and times when I won’t.

My biggest takeaway is that judges like her make it clear how important it is to think locally when it comes to politics. Barrett, Scalia, and others like them often opine that congress or state governments are the entities which should govern, and worry that certain actions by the Court usurp that power. Vetting the candidates on your ballot — particularly by examining their official actions — is important, so that when, and if, Roe or Obergefell or some other case important to your life is sent back to the states to decide, you’ve put the people in office that will further your cause.

If I were president, I would not choose Amy Coney Barrett as my nominee — not because I find her a dangerous ideologue, but because I take a broader view of the constitution than she does. I would, however, love to have had her as my law professor.

Part 1 covering Disciplinary hearings for sexual assault allegations on campus: John Doe v. Purdue University and Gun rights for felons: Rickey Kanter v. William Barr can be found here

Part 2 covering Sentencing Reform: U.S. v. Uriarte and Prisoner’s rights: John McCottrell v. Marcus White can be read here

Part 3 covering Federal Tort Claims: Chronis v. The United States and three cases involving the Fourth Amendment can be read here

1. Also in this talk, video available at the link, she is asked her thoughts on statements of then-candidates Clinton and Trump about their criteria for SCOTUS nominees. Trump said pro-life; Clinton said someone who would protect minority rights. Barrett replies that statements like these symbolize “what’s wrong with the nomination process.” She goes on to explain that the willingness to uphold the constitution, not one’s policy preferences, should be the criteria. She then added that protection of minority rights is a proper function of the constitution, by the way.