President Trump’s nominations to the Supreme Court have all been excellent, well-qualified jurists, but Amy Coney Barrett is the best of the lot. She is superbly qualified to serve on the nation’s highest court, and is poised to become the leader of the conservative justices.
Barrett, 48, grew up in Metairie, Louisiana, a suburb of New Orleans, and attended St. Mary’s Dominican High School, a Catholic girls’ school in New Orleans. In 1994, she graduated magna cum laude from Rhodes College in Tennessee, which is affiliated with the Presbyterian Church. Barrett then attended the Notre Dame law school, serving as executive editor of the law review and graduating summa cum laude in 1997. The top student in her class, she received the law school’s highest honor, the Hoynes Prize.
Barrett then landed two high-profile one-year judicial clerkships, first with Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, and then with Supreme Court Justice Antonin Scalia. Each Supreme Court justice is allowed four clerks, so a full complement is 36; these clerkships are highly coveted, and every successful candidate was a superstar in law school.
Her fellow clerks speak highly of her. Among the clerks with whom Barrett served was Noah Feldman, then clerking for Justice David Souter, now a professor at Harvard Law School. Feldman, though a man of the Left and likely to disagree with Barrett on ideologically-charged cases, is effusive in his praise of Barrett:
“I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.
“When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.
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“To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.”
After her Supreme Court clerkship, Barrett practiced law with Miller, Cassidy, Larroca & Lewin, a prestigious D.C. litigation boutique, and then with Baker Botts after that large, prestigious Houston-based firm acquired Miller, Cassidy.
In 2002, Barrett returned to her law school alma mater, Notre Dame, to teach federal courts, constitutional law, and statutory interpretation. She became a full professor in 2010, assumed an endowed chair in 2014, and was named “distinguished professor of the year” three times.
When, in May, 2017, President Trump nominated Barrett to the 7th Circuit Court of Appeals, 450 former Notre Dame law students signed a letter to the Senate Judiciary Committee telling the senators that their support was “driven not by politics, but by the belief that Professor Barrett is supremely qualified.” Barrett also had the unanimous support of her 49 Notre Dame law professor colleagues, who wrote that they had a “wide range of political views” but were united “in our judgment about Amy.”
NPR relates an anecdote that helps explain why Barrett’s students love her. Laura Wolk has been blind since she was 15 months-old, because of a retinoblastoma, an eye cancer. When Wolk arrived at the law school, she found that the computer software didn't allow her to access law books and other legal material in the text-to-speech format she needed in order to “read” them for her classes. As Wolk recounts, when she told Barrett about it, Barrett replied, "This is one I absolutely can take off your plate.” And she did, getting the law school to quickly purchase the needed software. Laura Wolk would go on to graduate second in her class and serve as a law clerk for Justice Clarence Thomas.
The near-universal bipartisan support Barrett enjoys among those who have worked with her and know her best says a great deal about her as a person. Analytical brilliance rarely combines with excellent character and a winning personality, but Amy Coney Barrett seems to be one of those rare and very special people.
Amy and her husband, Jesse M. Barrett, have seven children, including five biological offspring, the youngest of whom has Down syndrome. Two of their children were adopted from Haiti, the poorest country in the Western Hemisphere, and one of the poorest in the world. One was adopted in 2005, the other after the 2010 Haiti earthquake.
How Would a Justice Barrett Rule on Religious Liberty Cases?
It is beyond clear that Barrett is superbly qualified to serve on the Supreme Court, both academically and by judicial temperament, but the question most Seventh-day Adventists will be concerned about is: will she protect religious liberty? Barrett has been on the appellate bench for only three years and she does not have an extensive record of opinions, but I think she will be fine on religious liberty questions, for several reasons.
a. Barrett’s Religion
First, Barrett is herself religious, and doubtless understands what motivates believers. She has already been attacked from the Left for being “too religious.” In her 2017 confirmation hearing for the 7th Circuit seat, Senator Diane Feinstein infamously told her that, “the dogma lives loudly within you, and that is a concern.”
Barrett is Roman Catholic, the largest denomination, but she is also part of a small group called “People of Praise,” founded in 1971 by two charismatic Catholics. As with other charismatic and Pentecostal Christians, “People of Praise” believes in the baptism of the Holy Spirit, speaking in tongues, and prophesying. They also believe in male spiritual headship—that a woman should be submissive to her husband, and that leadership in the church is reserved for men—which makes People of Praise even more unpopular. So Barrett’s own life experience is likely to give her sensitivity and sympathy toward religious groups, especially small, unpopular, persecuted groups.
Of course, no jurist will admit that her personal feelings would influence her judicial opinions, and Barrett is no different: She has said that she does not believe it is “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law.” Nevertheless, it is difficult to imagine that her own experience as a religious believer, and a member of a small, unpopular sect, will not be a factor in cases involving freedom of religion.
b. The Pritzker Executive Order Case
Barrett recently ruled on a case that involved freedom of religion. Governor Pritzker of Illinois has issued a series of executive orders limiting group gatherings to no more than 50 people, but in his more recent orders he exempted houses of worship from that limit. The Republican Party of Illinois sued to overturn Pritzker’s executive order on the basis that exempting churches from the 50-person limit was an unfair privileging of religion.
Barrett was on a three-judge 7th Circuit panel that last month confirmed the trial court in declining to grant injunctive relief to the plaintiffs. [llinois Republican Party v. Pritzker, __ F.3d __, No. 20-2175, 2020 WL 5246656 (7th Cir. Sept. 3, 2020)]. The Republican Party’s theory as to why the executive order should be tossed out was bizarre, and hence we must not attach too much significance to the appellate panel’s ruling, but on balance, the ruling can be fairly read as a defense of the unique importance of freedom of worship:
“A careful look at the Supreme Court’s Religion Clause cases, coupled with the fact that [Pritzker’s order] is designed to give greater leeway to the exercise of religion, convinces us that the speech that accompanies religious exercise has a privileged position under the First Amendment, and that [Pritzker’s order] permissibly accommodates religious activities.”
The court went on to point out that freedom of religion is more than just freedom of speech combined with freedom of association. Worship is its own category, and that category has special protection.
c. The “Letter of Protest”
President Obama’s signature health-care legislation, “Obamacare,” required all employer-provided health plans to provide free contraceptives, sterilizations and abortion-inducing drugs (abortifacients), regardless of any moral or religious objections the employer had to such birth-control methods. The legislation met with an outcry, and the Obama Administration, in its implementing regulations, purported to add an “opt out” provision for employers with conscientious objections to providing this type of coverage.
But many felt the accommodation was insufficient. In 2012, Amy Barrett signed a letter of protest, that read in part:
“This so-called ‘accommodation’ changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy. It is certainly no compromise. The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust. Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services.
“It is no answer to respond that the religious employers are not ‘paying’ for this aspect of the insurance coverage. For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers. More importantly, abortion drugs, sterilizations and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.
“It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying ‘five-day-after pill’ pursuant to the insurance contract purchased by the religious employer. It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.
Barrett’s opposition to Obamacare’s employer mandate on contraception is another strong indication she will be sensitive to freedom of religion issues.
I would argue that Barrett’s support of the “letter of protest” has been fully vindicated by subsequent events, including the Supreme Court’s ruling in Burwell v. Hobby Lobby, 573 U.S. 682 (2014) and the new DHS regulations promulgated by President Trump. The Supreme Court in Hobby Lobby upheld the Religious Freedom Restoration Act of 1993 as to federal legislation, and ruled that an employer mandate requiring employers to provide contraception was not the least restrictive way to ensure access to contraception. Clearly, the Supreme Court agreed with Barrett that the Obama Administration’s attempt at an accommodation was insufficient.
Further, the Trump Administration changed the implementing regulations to ensure that religious Americans and their organizations, such as the Little Sisters of the Poor, would not be forced to choose between violating their religious beliefs by complying with Obamacare’s contraceptive mandate or shutting their doors. The administration also formed a new Conscience and Religious Freedom Division within the Department of Health and Human Services, allowing HHS to more vigorously enforce existing laws protecting the rights of conscience and religious freedom, including 25 existing statutory protections for Americans who have religious or moral convictions related to certain health care services.
d. The Second Amendment Case
Since our concern is how Barrett will honor the First Amendment right to freedom of religion, it is worth examining how Barrett treats other named rights in the Bill of Rights. In Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), Barrett dissented from a ruling upholding both a federal statute and a Wisconsin statute prohibiting all felons from possessing firearms. The plaintiff, Rickey Kanter, had been convicted of mail fraud, a crime involving dishonesty but not violence; he argued that he should not therefore be barred from owning a firearm. The majority upheld the statutes as applied to Kanter as being, "substantially related to an important government interest in preventing gun violence."
In her dissent, Barrett argued that since the right to keep and bear arms is listed in the Bill of Rights, governmental action to strip it away must be held to strict scrutiny. In other words, the government must be “put through its paces” to show that a blanket ban on felons owning firearms is necessary to prevent gun violence, and narrowly tailored to achieve that purpose. But there was no evidence that denying guns to nonviolent felons promotes the government’s interest in preventing gun violence, hence the statutes violated the Second Amendment.
{The Federal and Wisconsin statutes] would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment
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On this record, holding that the ban is constitutional as applied to Kanter does not “put the government through its paces” . . . but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” I therefore dissent.
This is clear evidence of a very high regard for the enumerated constitutional rights in the Bill of Rights, and bodes well for Barrett’s approach to First Amendment freedom of religion cases.
The Coming Trial
The constitution authorizes the president to appoint justices to the Supreme Court “by and with the Advice and Consent of the Senate.” Senatorial confirmation fights have grown increasingly rancorous as the Supreme Court—employing theories of constitutional interpretation ever more detached from the words and original meaning of the written charter—has become a super-legislature, the legislature of last resort for progressive activists impatient with, and unsuccessful in, the normal legislative process. The Left has achieved stunning victories in the Supreme Court, most notably on abortion and same-sex marriage, that would have been very difficult if not impossible to achieve in the several state legislatures; they well understand the importance of the high court.
Today’s dark era of astonishingly vicious Supreme Court confirmation fights was heralded by Edward Kennedy’s attack on Robert Bork, President Reagan’s 1987 nominee to replace retiring Justice Lewis Powell:
“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.”
Bork responded, "There was not a line in that speech that was accurate," but unfortunately it had the desired result: Bork lost his confirmation fight. The savagery of Kennedy’s attack created a new term, “borking.”
The borking of Robert Bork was the prototype for using character assassination against a Supreme Court nominee. In 1991, Joe Biden used the same playbook against Clarence Thomas, the black jurist Bush the elder nominated to replace the first black Supreme Court justice, Thurgood Marshall. It did not work that time; Thomas was confirmed despite Anita Hill’s testimony that he had made unwanted sexual comments to her.
But perhaps the most egregious example of an attempted borking was of Brett Kavanaugh, just two years ago. Democratic senate staffers, conspiring with a cabal of Leftist activist lawyers, dredged up a witness who alleged that Kavanaugh had tried to force himself on her at a party when the two were teenagers 35 years before. Kavanaugh vehemently denied the charge; the witness was vague, lacking in detail, had made no contemporaneous report to anyone, and had no corroborating witnesses. Yet this baseless, underhanded attack very nearly derailed Kavanaugh’s nomination. It also opened the floodgates of slander against Kavanaugh, leading to ever more outlandish stories being floated against him.
It is difficult to imagine how any future confirmation battle could be worse than the national disgrace of the Kavanaugh hearing, but the stakes are much higher this time. Neither of President Trump’s first two nominees significantly changed the ideological balance of the court. Gorsuch replaced the solidly conservative Antonin Scalia; Kavanagh replaced swing-voting but often conservative Anthony Kennedy (Reagan’s replacement nominee for Robert Bork). Gorsuch is emerging as an occasional swing vote, and Kavanaugh, while conservative, is no Scalia.
But this time the ideological make up of the court will be altered. A solid liberal, Ruth Bader Ginsburg, the leader of the court’s Left wing, would be replaced by a solid conservative, someone who might become the new Scalia: the intellectual leader of the court’s conservative wing. If Barrett is confirmed, the court would consist of six usually conservative justices, and three liberals. To win in an ideological case, the liberals would need to pick off not just one swinging conservative (which these days is frequently the chief justice, John Roberts), but two, a much harder task. The stakes couldn’t be any higher.
President Trump is betting that Amy Coney Barrett, with her sterling academic credentials, legendary kindness, and exemplary character, is un-borkable. We will soon find out. The Senate Judiciary Committee hearing begins Monday morning. The stage is set for a titanic struggle.