Federal Judge Nominee Amy Coney Barrett Holds Controversial Beliefs

Amy Coney Barrett

Amy Coney Barrett – a federal judicial nominee for the U.S. Court of Appeals for the Seventh Circuit – holds a set of beliefs that make her a controversial judicial nominee. Should Congress confirm her to the Seventh Circuit, Barrett would embody the ideals of the late Supreme Court Justice Antonin Scalia (who Barrett actually clerked for before moving into teaching at Notre Dame University Law School).

Personal Belief Versus Oath Of Office

In one of her more controversial public positions, Barrett believes religious belief should be placed before the Constitution when the two conflict. No where is Barrett’s belief that religious belief should come before constitutional law more visible than in an article she wrote entitled, “Catholic Judges in Capital Cases.”

In the 1998 article discussing Catholic judges overseeing death penalty cases, Barrett said, “Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases.” She added, “This puts Catholic judges in a bind. They are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church’s teaching on moral matters.”

Throughout the article Barrett offers various contentions on the dilemmas Catholic judges face when their personal religious convictions are placed in conflict with legal requirements when imposing the death penalty. After quoting Justice William Brennan’s statements about placing the oath to uphold the law above all else, she stated, “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

For reference, here is Brennan’s statement from his confirmation hearing she referenced:

Senator, [I took my] oath just as unreservedly as I know you did… And… there isn’t any obligation of our faith superior to that. [In my service on the Court] what shall control me is the oath that I took to support the Constitution and laws of the United States and [I shall] so act upon the cases that come before me for decision that it is that oath and that alone which governs.

That isn’t Barrett’s only problematic view of jurisprudence.

Stare Decisis

One of Barrett’s most controversial beliefs is her questioning of the doctrine of stare decisis.

Alliance For Justice (AFJ) – a progressive judicial advocacy group – commented on her extensive academic writings on the subject:

Barrett takes the extreme view, unsupported by virtually anyone in the legal community, that a judge does not have to adhere to precedent if she believes a case was wrongly decided. This approach would threaten a wide range of rights and protections established by past court rulings, including rights for workers, LGBTQ Americans’ rights, and voting rights, in addition to women’s reproductive rights. Her views are completely at odds with the way in which our justice system works, and would make it unworkable if adopted by judges.

For those unfamiliar with stare decisis (short for stare decisis et non quieta movere), here’s an explainer.

The phrase, when translated, literally means “stand by the thing decided and do not disturb the calm.”

When a court hands down a decision, it establishes precedent. That precedent can be overturned by a higher court (such as an appeals or supreme court). Generally, federal appeals court decisions (at least those without conflicts among other circuits) establish precedent as does any decision from the U.S. Supreme Court.

Courts cite these previous cases when making decisions forming a building block system of case law.

The doctrine of stare decisis is foundational to the very nature of our legal system. When a judge hears a case with a topic that conflicts with his or her personal religious beliefs, the judge should – according to the stare decisis doctrine – rely on case law precedent to make the decision.

One example of Barrett’s view of stare decisis in action is Supreme Court Justice Neil Gorsuch’s dissent in the Pavan v. Smith decision. That case involved an Arkansas law that treated same-sex couples differently than opposite-sex couples in having both names on their children’s birth certificates if both parents were not the biological parent(s).

Though birth certificates had been included both in state law for opposite sex couples as well as in the full “constellation of benefits” associated with the legal institution of marriage as outlined in the historic Obergefell decision recognizing same-sex couples’ right to legally marry, Gorsuch dissented. While he offered legally questionable reasoning in that dissent, many legal observers noted he was simply refusing to accept Obergefell as legal precedent.

This is the type of system Barrett argued for in her academic writing – a contention that legal precedent should be ignored, particularly if personal religious belief does not comport with that precedent.

Though she’s written about the subject repeatedly, her 2003 University of Colorado Law Review article entitled “Stare Decisis and Due Process” sums up her position succinctly. In the article she argued the doctrine violates litigants’ due process rights because it eliminates the right to hear an argument on its own merits rather than relying on legal theory decided in similarly heard cases.

In the article, she argued in part:

This preclusive effect raises serious due process issues, and, as I shall argue below, occasionally slides into unconstitutionality. In adjudication-where, by definition, life, liberty, or property is at stake-the Constitution guarantees litigants due process of law. Due process includes the right to an opportunity to be heard on the merits of one’s claims or defenses. To the extent that a rigid application of stare decisis deprives litigants of this opportunity, it raises a due process issue.

That’s just the tip of the iceberg though. She’s written a plethora of articles on the subject – each attacking the doctrine with some even attacking the notion that it should be a legal doctrine. Here are a couple more that offer insight into her thinking on the doctrine:

Barrett’s position on stare decisis could be critical when it comes to several issues she holds personal beliefs on that conflict with existing federal precedent.

Barrett’s Views

In their breakdown of her public positions, AFJ noted quite a few areas where Barrett may have the opportunity to roll back existing decisions should she decide not to adhere to case law precedent. They noted:

Barrett was cited in a Notre Dame publication for “her own conviction that life begins at conception,” and she has been critical of Roe v. Wade, stating that the Supreme Court “creat[ed] through judicial fiat a framework of abortion on demand” that “‘ignited a national controversy.”

In their full background report on Barrett, AFJ added:

Barrett’s academic writings demonstrate that she is a strict textualist and a firm originalist. Barrett has argued for an extremely broad application of originalism. For example, she has suggested that the administrative state is unconstitutional and the Fourteenth Amendment is illegitimate:

“Because the kinds of procedural outs that permit originalism and deep-seated error to coexist, in courts are not as readily apparent in the legislative context, the originalist legislator might have to face questions that an originalist justice can escape—such as the constitutionality of the administrative state or the legitimacy of the Fourteenth Amendment.”

In a 2016 interview with CBS, Barrett largely defended what would become the actions of the GOP Senate in refusing to act on President Obama’s nominee to the Supreme Court, Merrick Garland. While she conceded that there have been numerous election year confirmations and said there was “no rule for either side,” Barrett said the election year nomination of Anthony Kennedy was different from that of Garland, because the Bork nomination had failed and “the reality is that we live in a different time…as we all know confirmations have gotten far more contentious, I just don’t think we live in the same kind of time.” She concluded, “in sum, the president has the power to nominate and the Senate has the power to act or not.

There’s much more to unpack in their report. They also created a shorter, more easily digestible fact sheet summarizing her most prominent views.

If confirmed, Barrett would hear cases from Illinois, Indiana and Wisconsin.

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he's worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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  • I remember when JFK was running how people were concerned about someone placing the Pope in Rome over the Constitution of the United States of America. My how things have changed. Someone else’s faith should not overrule my protections under the laws of this country. No. Keep your ‘Church’ out of my ‘State’ as was intended. I respect her beliefs and may even agree with them, but she is unfit for the job if she cannot be impartial.

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