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A closer look at the judicial philosophy of Amy Coney Barrett

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October 7, 2020

By now, most of America knows the name Amy Coney Barrett. For many, President Trump’s nominee to the Supreme Court became a familiar name during her confirmation hearing to the 7th Circuit Court of Appeals in 2017. At the time, as Barrett was sitting before the Senate Judiciary Committee, Sen. Diane Feinstein aggressively questioned her ability to serve as a judge on account of her religious faith. Summing up the intense exchange was Fienstein’s now infamous remark to Barrett, “The dogma lives loudly within you.” But often overlooked was Barrett’s response to the line of questioning: “If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”

Despite the senator’s protestations, Barrett was confirmed to the 7th Circuit, where she continues to serve. And in the days since she was officially nominated by President Trump to serve as an associate justice on the Supreme Court following the death of the late Justice Ruth Bader Gisnburg, Barrett’s life, faith, record, and judicial philosophy have come under tremendous scrutiny. In fact, before she was even nominated—when there was only speculation that the president was considering Barrett—multiple media outlets published outlandish attacks upon Barrett, attempting to draw links between the judge’s faith community and the dystopian novel The Handmaid’s Tale

Regardless of whether or not one agrees with Barrett’s beliefs, the most important thing about a judicial nominee is not his or her faith or religious background but the nominee’s judicial philosophy—a jurist’s understanding of and approach to the law. In fact, attempting to impose a religious test upon public officials or judicial nominees is strictly prohibited by Article VI of the Constitution. And concerning her own approach to impartiality as a judge, Barrett has said, “I think one of the great traditions in this country is that judges participate in the law, participate in the decision of cases, and rule even when they disagree with the outcome.”

As Russell Moore insists, these arguments over the Supreme Court nominee’s religious faith are an unnecessary distraction. And beyond these trivialities, there is much to commend Amy Coney Barrett as a potential Supreme Court justice. Below, I explore only a few of the features of her judicial philosophy as evidence of why I believe Judge Barrett would make an excellent addition to our nation’s highest court.

Summary of Barrett’s judicial philosophy

At the time of her nomination, the ERLC described Barrett’s judicial philosophy this way:

“Judge Barrett is a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted; and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning. Judge Barrett has previously voiced support for the judicial doctrine of stare decisis (or, following existing precedent) while maintaining that prior precedent is not sacrosanct.”

Twin methodologies

As seen in that summary, an important part of Barrett’s judicial philosophy is her commitment to the “twin interpretive methodologies” of textualism and originalism, an approach to interpretation that the judge shares with the late Justice Antonin Scalia for whom she clerked at the Supreme Court. The two terms essentially refer to the same methodology, with textualism corresponding to statutory interpretation and originalism applying to constitutional interpretation. 

According to Barrett, originalists “insist that judges must adhere to the original public meeting of the Constitution’s text.” Elsewhere she wrote, “For an originalist, the meaning of the text is fixed so long as it is discoverable.” For Barrett, a law means what the law was understood to mean when it was enacted. In this sense, Barrett’s originalism stands in contrast with the “living constitutionalism” of more progressive jurists. 

Similarly, Barrett has argued that textualists “emphasize that words mean what they say, not what a judge thinks that they ought to say.” A commitment to textualism, therefore, signals Barrett’s recognition of the fact that judges are not legislators. A key reason one can have confidence in her jurisprudence is her assertion that “Fidelity to the law means fidelity to the text as written.” 

Stare decisis

Alongside her commitment to textualism and originalism, another critical aspect of Barrett’s judicial philosophy is her view of stare decisis. Legal professionals, as well as those who followed recent Supreme Court confirmation hearings, will remember that the doctrine of stare decisis refers to legal precedent. It is a judicial policy that means “to stand by the things decided.” And it signifies a commitment to following existing precedent in deciding cases before the court. Barrett has described the doctrine as “ a sensible rule” because, as she notes, “among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.” 

Undoubtedly, much will be made of her view of stare decisis should Barrett sit again before the Senate Judiciary Committee for confirmation. At the Supreme Court, challenges to abortion are measured by the precedents established in Roe v. Wade and Planned Parenthood v. Casey. And with the current ideological makeup of the court, proponents of abortion will desire for Barrett to affirm a strong commitment to stare decisis in hopes of rebuffing any legal challenges to these precedents.

Barrett affirms the importance of stare decisis as means of maintaining doctrinal stability. She recognizes that the court’s legitimacy hinges in part on its consistency. But even so, she acknowledges that the doctrine is only one means of promoting such stability. While she does recognize that certain rulings are secure as “superprecedents” (e.g., Marbury v. Madison; Brown v. Board of Education), she denies that such rulings are secured on the grounds of stare decisis. And notably, in a law review article Barrett specifically mentions that the decision in Roe has not achieved superprecedent status.

Conclusion

It is unreasonable for any group to expect that a jurist would issue only rulings consistent with the views of those who supported his or her nomination. But many times in recent decades, religious conservatives have faced bitter disappointment not because of a judge’s commitment to upholding the law but because of the apparent disregard of numerous judges for their former approach to jurisprudence prior to obtaining a lifetime judicial appointment. And while there is no way to know for certain, the judicial philosophy of Judge Barrrett gives every reason for confidence in the trajectory of her future as a jurist and, potentially, as a Supreme Court Justice.

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Josh Wester

Joshua B. Wester serves as the Chair of Research in Christian Ethics at the ERLC. He is also pursuing a Th.M. in Public Theology at Southeastern Baptist Theological Seminary. Josh is married to McCaffity, and they have two children. Read More by this Author