Justice Barrett, 48, further tips the balance of the Supreme Court in favor of conservatives. She is the third person and first woman Trump has chosen to serve on the highest court in the federal judiciary. Previously, she sat on the United States Court of Appeals for the Seventh Circuit in Chicago for three years—a relative lack of judicial experience compared to her predecessor as well as her fellow justices. (Trump nominated her for that position in 2017.)
Given how close we are to the November election, Democrats have called out the hypocrisy that the Republican-led senate moved to confirm Trump's nominee at all—let alone so hastily—given how they stalled and successfully blocked President Barack Obama's nominee, Merrick Garland, in the final months of his presidency. (Nothing in the Constitution says a sitting president cannot fill a Supreme Court seat in an election year.)
"I fear that some of our politicians are setting things up as a competition of winner take all and forgetting that they have a fundamental responsibility to govern for the best interests of all the American people. That includes women and gay people and trans people and all people who are just wanting to live their lives with dignity and compassion," says Elizabeth Cooper, JD, a law professor at the Fordham University School of Law. "In many ways, that was at the core of what Justice Ginsburg lived and wrote and sought her whole life. It's so hard to think about someone who doesn't share those values filling the seat that she did so magnificently."
Much of the controversy surrounding Barrett's confirmation is tied to her strong Roman Catholic beliefs and how they might influence her rulings on issues like abortion and LGBTQ+ rights. Charlie Camosy, PhD, an assistant professor of theology at Fordham University and a graduate of Notre Dame (where Barrett, also an alumna, has taught at the law school since 2002), says he wonders if these concerns have more to do with her politics than her religion.
"There doesn't seem to be a lot of skepticism about Ruth Bader Ginsburg's very strong belief in her Jewish faith. Obama very much highlighted his religiosity. Very few people that I know of anyway, look at those figures and say, 'They're doing something wrong,'" says Dr. Camosy. "The minute the issues change, the conclusions change and are different from what certain people tend to hold, suddenly you hear lots of language like, 'Keep religion out of the public sphere, stop imposing your religious views on people who think differently,' and on and on."
Here's how Barrett's viewpoints could impact your well-being if she becomes a Supreme Court Justice.
How Amy Coney Barrett views key issues, and how they could influence her rulings on the Supreme Court
1. Abortion rights
Barrett has come under fire for her previous statements and actions related to abortion. In 1998, as a third-year student at Notre Dame Law School, Barrett penned a law review article titled “Catholic Judges in Capital Cases,” along with then-Notre Dame Law professor John Garvey, who is now the president of the Catholic University of America. The article discusses how Catholic judges interact with the death penalty, comparing capital punishment to "other practices whose point is the taking of life—abortion, euthanasia, nuclear war, and murder." Barrett and Garvey state the case for the Church's prohibitions of abortion and euthanasia as absolute because they both "take away innocent life."
When questioned about these words during a hearing before her 2017 confirmation to the Seventh Circuit, Barrett said that she didn't believe a judge's faith should influence the way they decide cases.
"It's never appropriate to impose that judge's personal convictions, whether they derive from faith or anywhere else on the law," she says. "If there is ever a conflict between a judge's personal conviction and that judge's duty under the rule of law that it is never ever permissible for that judge to follow their personal convictions in the decision of a case rather than what the law requires."
During her three years as a court of appeals judge, Barrett has dealt with a few cases involving abortion. In 2018, she joined a group of judges in support of rehearing a challenge to a struck-down Indiana law requiring fetal remains to be either buried or cremated after an abortion. In 2019, after a three-judge panel ruled that an Indiana law requiring young women to notify their parents before obtaining an abortion law was unconstitutional, Barrett joined a group of judges that wished for the full Seventh Circuit to rehear the challenge to the law on the basis of a clause that prevented abortions based on the race, sex, or disability of the fetus. Also in 2019, Barrett joined an opinion upholding a Chicago law that barred anti-abortion protestors from approaching women as they entered abortion clinics, following Supreme Court precedent.
Dr. Camosy, a Catholic moral theologian, says it's impossible for Barrett to truly divorce her religious beliefs from the ways she interprets law.
"To a certain extent, conservatives or strict constructionists miss something important if they think they can be utterly neutral observers and just apply the law without their own biases coming into it," says Dr. Camosy. "But at the same time, there does seem to be a difference between justices who say, 'I want justice to be done based on this vision of the good that I personally have,' and a justice who says 'That's really not my job and as much as possible, I want to try to avoid that.'"
2. Health care
With a challenge to the Affordable Care Act to be heard in November, Democrats expressed concern that anyone Trump could have picked to fill Ginsburg's seat might decide the fate of a law that helped more than 20 million Americans get health insurance.
"I understand why those who want the president to slow down—namely, the Democrats—are really focusing on the future of the ACA," says Cooper. "People say if you have your health, you have everything. Well, if you don't have your health, what do you have? Especially in the time of COVID-19."
In 2012, Barrett was one of 500 scholars and religious leaders who felt that the religious compromise in the ACA, allowing religious organizations to opt-out of providing birth control as part of health insurance plans (and the insurance company these organizations work with providing it instead), wasn't enough. She signed a petition stating: "This so-called accommodation changes nothing of moral substance and fails to remove the assault on individual liberty and the rights of conscience which gave rise to the controversy."
Barrett also wrote a 2017 law review article (published prior to joining the appellate court) criticizing Chief Justice John Roberts, who cast the deciding vote in a 5-4 decision upholding the part of the Affordable Care Act that required most Americans to get health insurance or face a tax penalty.
"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," said Barrett. "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; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power."
3. LGBTQ+ Rights
When asked during her 2017 confirmation hearing how she would rule on cases regarding same-sex marriage, given her religious beliefs and time spent clerking for the late Justice Antonin Scalia (who was extremely vocal in his dissent of the 2015 ruling that legalized same-sex marriage), Barrett upheld that her personal beliefs did not matter. This response didn't sit well with Sen. Dick Durbin (D-IL).
"I don't believe that for a second. I don't think cases reach your level, at the circuit level, that are that clear...You're really called on to judge cases that are a close call," said Sen. Durbin. "I don't think you can divorce yourself from life's reality at that point. I am going to see things in a certain way based on what I've done, what I've seen, what I believe in my life. And I'm going to call it the appropriate interpretation of the law. So I don't buy this robot approach."
Barrett is a member of a small, tight-knit Christian group called People of Praise, which places extraordinary value on heteronormativity. Members are assigned a personal advisor (advisors who are men are referred to as a "head" while those who are women are referred to as a "handmaid") and taught that husbands should have authority over their families, including their wives.
Additionally, Barrett gave a lecture at the Blackstone Legal Fellowship, a program run by the Alliance Defending Freedom, a high-profile Christian legal firm that represented the Colorado baker who refused to bake a wedding cake for a gay couple, among other religious freedom cases. It has been dubbed an anti-LGBTQ+ hate group by the Southern Poverty Law Center. She later said that while she knew the group supported a traditional view of marriage, she was not aware if the group "was working to end same-sex marriage or recriminalize homosexuality abroad," or whether the SPLC's characterization of the hate group was accurate.
"My concerns [for the LGBTQ+ community] go beyond Barrett," says Cooper. "My deep concern is that the values held by the people the president has nominated until now and that he has said he will continue to nominate are not those that recognize the full richness and humanity of all Americans. I am deeply afraid for how the Supreme Court will rule on issues affecting LGBTQ+ people."
As an appellate court judge, Barrett's rulings on immigration haven't necessarily been supportive.
In January 2019, she wrote an opinion for a three-judge panel that agreed that the wife of a U.S. citizen could not challenge the denial of her visa application. The husband and wife were born, raised, and married in Yemen. The husband became a U.S. citizen and filed an approved petition for his wife and children to apply for green cards. Their applications were denied on the basis of a claim that the wife had tried to smuggle two of their children into the country. The family argued that she couldn't have tried to smuggle the named children into the country because they had died in a drowning accident. The consular officers did not find substantial evidence to support this claim.
In June 2020, she dissented from a decision upholding a district court order blocking the Trump administration from enforcing public charge, a rule which bars noncitizens who the government believes are likely to rely on public assistance from receiving a green card. Barrett wrote that her dissent was based on the district court's "flawed analysis" of the term "public charge."
While these rulings did not benefit immigrants, Dr. Camosy says it doesn't mean Barrett is anti-immigration.
"There is a certain kind of right-wing Catholic who makes Catholic teachings fit into the right-wing box and ignores or tries to explain away the the left-wing views of the Catholic Church," says Dr. Camosy. "She does not strike me, especially given her views against the death penalty, as somebody who could possibly be put into a right-wing box. My view would be that she's probably an Orthodox Catholic on immigration, which means that she's not a nationalist, she's pro-immigrant, and she's definitely pro-refugee and has a commitment to a culture of encounter and hospitality that Christ commanded us to have and that the Church has commanded us to have as well."
Scholars raise legitimate questions about a Amy Coney Barrett's independence and impartiality
Both Cooper and Dr. Camosy agree that it's impossible for Barrett to truly separate her personal beliefs from her rulings. How much that should concern you is a matter of interpretation. And regardless of how much she did or didn't allow her views to impact her rulings on the Seventh Circuit, the Supreme Court is entirely different, and could present her with more flexibility.
"When you're talking about [the Supreme Court], although there is the impact of precedent, the court has the ability to essentially overrule itself and to push law into an entirely new direction," says Cooper. "A statement earlier in a person's career that they will apply the precedent of the Supreme Court to their work requires much more in-depth questioning if that person has been nominated to become a Supreme Court justice."
Originally published September 24, 2020; updated October 27, 2020.
Loading More Posts...