Rooted in faith: Amy Coney Barrett’s path to the steps of the US supreme court
Donald Trump’s nominee personifies a rising Christian conservative legal movement
Judge Amy Coney Barrett, US president Donald Trump’s nominee for the supreme court, in Washington on October 1st. Photograph: Anna Moneymaker/New York Times
On a winter afternoon in 2018, Judge Amy Coney Barrett rose to speak in Notre Dame Law School’s wood-panelled courtroom and thanked the people gathered there for joining her for her official investiture as a judge on the US court of appeals for the seventh circuit.
In the audience were her parents, in town from her childhood home in New Orleans, and her husband, who had described her as a kind of superwoman, along with six of their seven children, who led the group in the Pledge of Allegiance. And there were many friends – from law school, her supreme court clerkship and her Catholic parish in South Bend, Indiana.
Also in attendance were a number of prominent conservative legal figures, mentors who had helped make this moment happen. But perhaps the most important was a Notre Dame graduate whose eyes were on the future, not the past. That graduate, Don McGahn, President Donald Trump’s White House counsel, was known for his single-minded focus on remaking the federal judiciary according to his own conservative views.
Contacts at his alma mater had lauded Barrett, then a professor, and even before Trump’s inauguration he had envisioned someone like her as a new kind of powerhouse on the supreme court – an outsider of unbending conviction on social issues.
“We now affectionately call her Judge Dogma,” McGahn joked when he got up to speak at the ceremony, a reference to a remark by Democratic California senator Dianne Feinstein, at Barrett’s confirmation hearing, questioning her ability to separate her religion from the law with words that were immediately emblazoned on mugs and T-shirts produced by conservative groups.
Like many of Trump’s original aides, McGahn has left the White House and was not at the Rose Garden event last month where the president announced his selection of Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg.
At that announcement, Trump, who in 2016 promised to appoint justices who would overturn the federal right to an abortion, presented Barrett to an audience of prominent conservatives including evangelist Franklin Graham, Fox News personality Laura Ingraham and the widow of Justice Antonin Scalia, for whom she had clerked.
Their enthusiastic response was a ratification of McGahn’s conviction, shared by his successor as White House counsel, Pat Cipollone, and the president himself, that selecting Barrett for the court would be an election-year statement to his most loyal supporters, social conservatives and members of the religious right.
“She seems like she was tailor-made for this moment,” said Carrie Severino, president of the Judicial Crisis Network, a powerful lobby on behalf of conservative judicial nominees. Justices Neil Gorsuch and Brett Kavanaugh, Trump’s two previous nominees, had the kind of background traditional for supreme court nominees of both parties, featuring Ivy League schools and government jobs on their resumes as well as establishment religious beliefs. Barrett embodies a different kind of conservatism.
Barrett is from the South and Midwest. Her career has been largely spent teaching while raising seven children, including two adopted from Haiti and one with Down syndrome, and living according to her faith. She has made no secret of her beliefs on divisive social issues such as abortion. A deeply religious woman, her roots are in a populist movement of charismatic Catholicism.
From her formative years in Louisiana to her current life in Indiana, Barrett has been shaped by an especially insular religious community, the People of Praise, which has about 1,650 adult members, including her parents, and draws on the ecstatic traditions of charismatic Christianity, like speaking in tongues. The group has a strict view of human sexuality that embraces once-traditional gender roles, such as recognising the husband as the head of the family. The Barretts, however, describe their marriage as a partnership.
Some former members of the group say it could be overly intrusive. Other members, like Barrett, appear to have treasured their connection to it. But she does not appear to have spoken publicly about the group, and she did not list her membership in the People of Praise when she filled out a form for the Senate judiciary committee that asked for organisations she belonged to.
Around the time of her appeals court confirmation, several issues of the group’s magazine, Vine & Branches, that mentioned her or her family were removed from the People of Praise website. Family members have also declined to comment on her participation.
To Barrett’s critics, she represents the antithesis of the progressive values embodied in Ginsburg, her life spent in a cocoon of like-minded thinking that in many areas runs counter to the views of a majority of Americans. She has made clear she believes that life begins at conception, and has served in leadership roles for People of Praise, and her children’s school has said in its handbook that marriage is between a man and a woman. Her judicial opinions indicate broad support for gun rights and an expanded role for religion in public life.
“Amy Coney Barrett is everything the current incarnation of the conservative legal movement has been working for – someone whose record, and the litmus tests of the president nominating her, suggest will overturn Roe, strike down the ACA, bend the law toward big business interests and make it harder to vote,” Elizabeth B Wydra, president of the liberal Constitutional Accountability Center, said, referring to the Affordable Care Act.
The Senate judiciary committee began hearings on Barrett’s nomination on Monday, and if she is confirmed, as seems all but certain, she could have an effect as early as next month, when the court will hear cases on the Affordable Care Act and a clash between claims of religious freedom and gay rights. She will represent a rising conservatism subtly different from what the court’s five other Republican appointees embody.
“If you think about the conservative coalition as being traditional business conservatives, libertarians and Christian conservatives, Christian conservatives have always been the outlier in that equation,” said Joshua C Wilson, a political scientist at the University of Denver who has studied the way political and social movements use law in the pursuit of political ends. “She has the credentials and experience of traditional secular conservative lawyers that are familiar from the Federalist Society, but she is also firmly related to and representative of the elite ranks of the emergent Christian conservative legal movement.”
Barrett’s six siblings were present for her hearing on Monday. But even as the Barretts’ large extended family holds Barrett and her husband, Jesse Barrett, in high personal regard, family members have a wide range of religious and political views reflective of the country’s, and tension over her nomination is present. One member of Jesse Barrett’s family who opposes her confirmation said her acceptance of Trump’s nomination in this politically fraught moment reflected her allegiance and her husband’s to an ultraconservative project.
“Probably what is most important to them is their vision of how the world should work, and their vision of how to get it there,” said the family member, who requested anonymity to discuss sensitive family issues. For Amy Coney Barrett (48) that vision comes from a deep sense of calling, one rooted in family and faith, and one that began before she was born.
Rooted in Religion
The day before Michael Coney’s 17th birthday, he came home from a summer job and found his mother had died. Devastated, he turned to his Catholic faith. He studied to be a Jesuit priest, then pivoted to law school and married a high school French teacher, Linda Vath. When their first child was born in 1972, they named her Amy Vivian, her middle name after his mother.
A new spiritual movement was spreading through the Catholic church in New Orleans at the time, led by a Jesuit priest who was the chaplain at Loyola University, where Coney was studying law. The Rev Harold Cohen preached a baptism in the Holy Spirit, part of a growing global movement of charismatic Christian worship practices.
Coney, a lawyer for Shell Oil, later described having a spiritual awakening at a charismatic seminar, and he was ordained a deacon in the Catholic Church. When Amy married years later, Cohen performed the ceremony.
Seeking to emulate the close-knit community of the Twelve Apostles, Coney and his wife, who had six girls and a boy after Amy, joined People of Praise, based in South Bend, and were a grounding force for the group’s New Orleans community. The group became an organising principle of their lives. Families promised to intimately share their lives, from the spiritual to the financial, and often bought homes near one another. A number of People of Praise families have lived on the Coneys’ block. Coney was later elected to two six-year terms on the national board of governors.
Old Metairie, their significantly white and Republican-leaning suburb of New Orleans, is a mix of modest and stately homes, with the Coneys’ two-story house wrapped in taupe siding on the upper end. Amy attended St Catherine of Siena, the school associated with her family’s parish, and then, like her grandmother, mother, aunts and sisters, went to high school at St Mary’s Dominican, an all-girls Catholic school.
In a course on social justice in her junior year, the girls read papal encyclicals about economic inequality, nuclear disarmament and the rights of workers, as they also learned about the church’s stance against contraception and abortion. Their teacher, Royann Avegno (70), spoke often of her eight children, seven of whom she had adopted, most with congenital conditions or special needs; three died. She brought one child to visit the class – he could not stand or talk, and she spoke with the students about the dignity of human life, even when it was frail.
Years later, when the Barretts adopted their first child from Haiti, weighing 11 pounds at 14 months old, Avegno said, Barrett sent her a note, invoking her example. A page in Barrett’s senior yearbook devoted to the school newspaper shows a picture of her busily writing above an item noting the supreme court had not expanded or modified abortion rights in the 1989 session.
While many high-school classmates stayed near home and went to Louisiana State University, Barrett went six hours away to Rhodes College, a liberal arts college in Memphis, Tennessee, with about 1,400 students, roots in the Presbyterian Church and a compelling financial aid package.
She belonged to the Catholic students association, but her activities ranged far beyond that: She joined everything from a mock trial group to the English Society and was an orientation leader and resident adviser. She dated but not seriously, friends said, pledging a sorority and socialising at the attendant parties.
“She was straighter than most of us, but she was not a stick in the mud at all,” said Shannon Papin, her sophomore roommate. An English major with a minor in French, she felt pulled between following her father into law or emulating her mother’s early career as a French teacher and becoming an English professor. “I know she pondered being a nun at some point,” Papin said. “But both she and her family felt that her talents pointed her in a different direction.”
“The impression she gave was of, not an unearned confidence, just that she had a kind of maturity, a kind of poise,” recalled Jennifer Brady, a former Rhodes professor who taught Barrett in several classes.
She took her role on the student honour council – which adjudicates on breaches of the college’s honour system – especially seriously. She told the school magazine her senior year that weighing potential infractions of the honour code was a “heavy responsibility”. “You have the power to affect someone’s life,” she said. “You want to be absolutely sure you’re doing the right thing by that person.”
When Barrett applied to law schools, Brady said faculty members “spent hours” arguing for her to consider Harvard University over Notre Dame, which was generally not highly ranked among the nation’s top law schools. Friends said Barrett later told them that while she had been accepted at the University of Chicago, Notre Dame had offered her a scholarship.
Later, she mentioned other reasons. “I’m a Catholic, and I always grew up loving Notre Dame,” Barrett said in 2019. “What Catholic doesn’t?” “I really wanted to choose a place where I felt like I was not going to be just educated as a lawyer,” she said. “I wanted to be in a place where I felt like I would be developed and inspired as a whole person.”
‘A Different Kind of Lawyer’
Notre Dame’s goal was to produce “a different kind of lawyer”, who would explore the “moral and ethical dimensions of the law”, as outlined on its website. Classrooms feature crucifixes, and some professors open class with a prayer.
“Notre Dame’s law school has done significant work not only to become one of the nation’s elite law schools, but also to become arguably the nation’s elite conservative law school,” Wilson and Amanda Hollis-Brusky, a politics professor at Pomona College in California, wrote in Separate but Faithful, a new book on the conservative Christian legal movement.
The school was a good fit for Barrett, according to Geoffrey Cockrell, a law school classmate who has remained a friend. “She’s obviously very Catholic and was always, like most of us, trying to figure out the intersection of your faith with this career,” he said.
She ended up living with friends of her parents, she wrote in a letter to her former college roommate, Papin, the January after her first semester at Notre Dame. “I love them,” she wrote. “It’s nice to live with a real family and have home-cooked meals and laundry and conversation about stuff beside law school.”
After a course on constitutional criminal procedure, Barrett discovered a legal approach that resonated: originalism, or the practice of interpreting the US constitution according to what it meant when it was adopted. “I wasn’t familiar when I entered law school with originalism as a theory,” she said last year in a speech at Hillsdale, a Christian college in Michigan. “But I found myself as I read more and more cases becoming more and more convinced that the opinions that I read that took the originalist approach were right.”
She graduated at the top of her class and received an award for the highest academic achievement. Her main interest at the time was public law, she told a local newspaper in 1997. “I am also interested in seeing how government is doing its job as it relates to protecting the citizens,” she said.
The sentiment was opaque but suggestive. Combined with her commitment to originalism, it indicated that she would seek to protect rights enumerated in the constitution, such as free speech and the free exercise of religion, rather than those that judges have drawn from its more general provisions, like the right to abortion.
As Barrett was standing out at Notre Dame, Republican leaders were looking to cultivate female and minority candidates for the courts to help counter the perception that the party was interested mainly in promoting white men. Two conservative professors in particular wanted to help Barrett advance: Patrick J Schiltz, now a federal judge, and William Kelley, a former aide to president George W Bush who had extensive Republican political and legal connections. Both had been Scalia clerks.
They helped open the first door: a clerkship with judge Laurence H Silberman of the US court of appeals for the District of Columbia Circuit. Silberman, a Reagan appointee whose chambers typically accepted clerks from only top law schools and often recommended them to Scalia, hired her without even an interview, after Kelley had insisted she would have been the top student at Harvard, too, the judge said.
Halfway through that clerkship, Kelley said, the judge called him and pretended to be angry: “You undersold her,” he said. Silberman, who said in an interview that he had appreciated Barrett’s analytical skills and clear writing, recalled introducing his clerk to jellyfish at a Chinese restaurant in Washington one evening after work. He went on to make a more significant introduction, recommending her to his close friend Scalia, whom he had once hired at the justice department when he was deputy attorney general.
Another Notre Dame professor, John Garvey, now the president of the Catholic University of America, sent Scalia simply one line: “Amy Coney is the best student I ever had.” Garvey and Barrett wrote a paper together, arguing that Catholic judges may be unable to enforce the death penalty because it would violate their beliefs. The law review article, published in 1998, would set off controversy years later at her Senate confirmation hearing – and inspire Feinstein’s notorious line of questioning.
When Scalia called to give her the clerkship, she was “stunned”, she told a local paper. “Right now, I plan to practise law for a while, get married, start a family and then maybe teach law,” she said. “That way, I can combine two careers I really love – the law and teaching.”
Later, she became engaged to Jesse Barrett, a fellow Notre Dame law student she had met in South Bend. At the supreme court, Barrett bonded with one of Justice Clarence Thomas’s clerks, Nicole Garnett, a fellow Catholic who had gone to Yale University. Members of the broader group of some three dozen clerks, of conservatives and liberals alike, saw Barrett as a committed “textualist who was working for a textualist” and respected her ability to simplify some of the court’s more complex cases.
“I remember she just came in one day and said, ‘I’m going to volunteer this weekend. Mother Teresa’s nuns run an Aids hospice on Capitol Hill. Do you want to go with me?’ I said sure,” Garnett said. “It was not something I would have thought to do in the middle of my clerkship, to go serve the dying with the nuns.”
When the clerkship ended, she remained in Washington, following Garnett’s husband Richard and another friend, Anthony Bellia, to the boutique law firm Miller Cassidy at a time when it was helping represent Bush in the disputed 2000 election. Barrett conducted research and helped with briefs in that matter, according to information submitted to the Senate.
The Garnetts and Bellia and his wife had all served as supreme court clerks, and Notre Dame Law School, which was building a new, distinctly conservative faculty cohort, noticed. Both couples soon joined it. Some faculty members at the time feared that the balance was shifting too far to the right, and that the law school was becoming too closely affiliated with the conservative wing of the Republican Party and the growing Federalist Society, according to four former and current professors.
But Kelley, who was highly influential, helped recruit Barrett and successfully pushed his colleagues to offer her a job. By then she had a daughter and was wondering if she should quit working and stay home. Although she had taught law as an adjunct at George Washington University, she had not widely explored possible teaching opportunities, friends said.
But when Notre Dame offered her a position, she took it, returning with her husband to familiar ground.
Back to the Academy
The Barretts bought a Craftsman-style house blocks from campus, allowing her to walk to work in a neighbourhood filled with faculty members like the Garnetts. Returning as a 30-year-old professor, Barrett was not much older than her students. She deliberately wore glasses, “to try to look very imposing”, she later said. Organised, a good speaker and caring toward her students, she was repeatedly voted teacher of the year.
In her research and writing, she devoted herself to originalism – a topic with which Scalia was closely associated, and one sure to catch attention from the conservative legal establishment. She did not seem particularly interested in electoral politics, but she telegraphed her positions on certain policy issues, most notably around abortion.
She joined an anti-abortion faculty group. In 2006, she signed her name to a newspaper ad taken out by a local anti-abortion group against “abortion on demand” and for “the right to life from fertilisation to natural death”. A similar ad, with her name included among fellow Notre Dame faculty members, ran in 2013. “We renew our call for the unborn to be protected in law and welcomed in life,” it read.
She signed a letter opposing the Obama administration’s contraception mandate in 2012. And for the 40th anniversary of the Roe decision in 2013, she addressed Notre Dame students about abortion as part of a lecture series, making clear her conviction that life began at conception, according to a campus magazine. But she also said the core right to abortion established in Roe appeared secure, as reported in a student newspaper.
“The fundamental element, that the woman has a right to choose abortion, will probably stand,” she said.
Raising her profile further within conservative circles, Barrett reactivated her membership in the Federalist Society’s grassroots network of conservative lawyers, in 2014. She began delivering more and more speeches, some to the Federalist Society, at college campuses such as Indiana University in Bloomington, Duke University and Harvard.
Many focused on originalism. In a 2006 commencement address, she gave her students three pieces of advice: Pray before accepting a new job. Give away 10 per cent of what you earn to church, charity or friends in need. Choose a parish with an active community and commit yourself to cultivating relationships there.
“It’s only when you’re an independent operator that your career takes over,” she said. “When your life is placed firmly within a web of relationships, it is much easier to keep your career in its proper place.”
Over the years, as her own career advanced, her family kept expanding, with a new child an average of about every two years. The Barretts learned that the adoption of their second child from Haiti had come through at the same time that Barrett learned she was pregnant again. In public remarks years later, she recalled walking to campus and sitting on a cemetery bench contemplating a household with five children younger than 10. “I just thought, ‘Okay, well, if life’s really hard, at least it’s short,’” she said, laughing. “But I thought, what greater thing can you do than raise children?”
When her youngest son was born with Down syndrome, on oxygen in the intensive care unit, she recalled that a friend had visited her bedside and joked that she had not needed to be “so competitive”. “You already had the most interesting Christmas card,” the friend said.
The family had a significant support system. Barrett’s aunt helped take care of their children for years, allowing both parents to pursue their professional ambitions. Jesse Barrett, who worked as a federal prosecutor before more recently entering private practice, grew up in South Bend as an only child with an unusually large extended family with a wide range of political views and religious experiences that have not always neatly aligned.
Jesse Barrett’s mother was an administrative aide to People of Praise, but nearly all of the extended family, which numbers about three dozen cousins, has no relationship to the group, according to a member of his family, who requested anonymity to discuss sensitive family issues. Some like Amy and Jesse have had positive experiences with it, but others have not, the family member said, in part because of the group’s patriarchal structure.
“I think some of Amy’s worldview is shaped by having been from birth part of this close-knit supportive community,” the family member said. “Between church, God, a supportive community, you end up thinking, ‘why is welfare important, we can have support from our community and God’.”
Although Amy Coney Barrett does not appear to have ever spoken publicly about her relationship to the group, an issue of the group’s magazine, since removed from the People of Praise website, shows she attended a 2006 leadership conference for women. A membership directory obtained by the New York Times described her as one of 11 local leaders for female members in South Bend, a role previously called a “handmaid”, inspired by a biblical reference to Mary, the mother of Jesus. It listed her husband as a member, too.
She served from 2015 to 2017 on the board of Trinity School, the private school of 250 students in South Bend that some of her children attend and that was started by and remains closely linked to the People of Praise. In 2014, the board of trustees of Trinity Schools Inc, which also runs two other schools, adopted a policy not to accept children of unmarried parents. Indiana was then in the middle of an intense legal battle to overturn its ban on same-sex marriage.
Jon Balsbaugh, the organisation’s president, said the school’s position then and now was that marriage should be between a man and woman, and ex-Trinity staff members said the admissions policy effectively excluded students of gay parents. Balsbaugh said the policy was not mentioned in minutes of board meetings that Barrett had attended, but ex-staff members said it was enforced during her tenure. A person involved in the confirmation process said she did not participate in creating the policy.
known in Politics, but Embraced by Politicians
Barrett was in a church vestibule after Mass in 2016 when she powered on her phone and saw the texts pour in: Scalia was dead. It was personal, for more reasons than she could know at the time. For months, Senate Republicans refused hearings not only for president Barack Obama’s nominee, Judge Merrick Garland, to succeed him, but also for dozens of other federal judicial nominations, including the Indiana seat on the court of appeals for the seventh Circuit.
McGahn, the incoming White House counsel, moved quickly after Trump won the election, prioritising the effort to shift the courts decisively to the right. Within weeks of the president’s inauguration, he nominated Gorsuch to fill Scalia’s seat, which had been vacant almost a year.
McGahn had heard of Barrett through Notre Dame connections, and he liked her record as well as the fact that she was not the clear choice of the Republican establishment, according to five people familiar with the nomination process. At the same time, Mark Paoletta, a lawyer in vice-president Mike Pence’s office who had worked on judicial nominations during the George HW Bush administration and helped shepherd Gorsuch through his confirmation, set about identifying top prospects for the appeals court in Indiana, Pence’s home state.
Barrett’s name kept coming up, according to Paoletta, who sat in on her interview at the White House with McGahn on March 1st, six weeks into the administration. Barrett’s academic writings suggested that she would be reliably conservative, an ideal prospect for the high court. She was not just a favourite mentee of Scalia, but was also a relative outsider who signalled something different.
Barrett was not a player in Indiana politics. She had never belonged to the Indiana state bar, although she had been licensed to practice in Virginia and Washington. But she had a following among conservative lawyers, especially in the Federalist Society.
Indiana at the time was a focal point for the movement to restrict access to abortion, with Pence’s political rise and the enactment of state laws broadening parental consent requirements, barring abortions based on gender or disability and calling for the burial or cremation of fetal remains.
Todd Young, Indiana’s newly elected Republican senator, had just been sworn in when McGahn called his attention to Barrett. “He made the initial introduction, indicating that within legal circles – meaning not popular circles – she was very well respected,” Young said. “I asked if she was an originalist, a faithful constitutionalist, and he assured me she was.”
Her official nomination, months after Trump took office, put her among his earliest picks for the bench. She was confirmed to the appeals court in October 2017 by a vote of 55-43, winning the support of three Democrats, including Senator Joe Donnelly of Indiana, a fellow graduate of Notre Dame Law School.
A ‘Subtly Brave’ Stand From the Bench
Two and a half weeks after she had been confirmed, McGahn saw to it that the new judge’s profile would rise higher. In a speech to the Federalist Society, he listed five additions to the president’s public list of favoured potential nominees to the nation’s top court. Among them were Barrett and Kavanaugh.
Barrett’s formal investiture in South Bend was still months away. It would not be long before another vacancy on the supreme court – the seat formerly belonging to justice Anthony Kennedy – opened up. In a sign of the administration’s big aspirations for the brand-new judge, Barrett was mentioned as a runner-up to Kavanaugh.
Trump gave an early signal of what he had in mind just a few months after she joined the appeals court. “I’m saving her for Ginsburg,” he told people, according to Axios.
Leonard Leo, a longtime leader of the Federalist Society and its former executive vice-president, said the effort to put Barrett “in play” had helped to further familiarise conservatives with her and consolidate their support – ultimately making a spontaneous nomination one sure to secure enough votes. “McGahn very much wanted that and facilitated it, but it certainly wouldn’t have happened without the president,” he said.
All the while, Barrett was settling into the daily rhythms of her new job. She set up her chambers on the second floor of the federal bankruptcy court in downtown South Bend. She christened it with a gift from Judge Don Willett, a fellow Trump appointee to another federal appeals court with a history of revelling in his uncompromising conservatism. He gave her a sign reading “Judge like a champion today,” a play on a sign that Notre Dame football players slap as they run onto the field.
For hearings, Barrett drove her gray minivan the roughly 90 minutes to Chicago, where the court of appeals for the seventh circuit is based. She joined the Union League Club to stay overnight when necessary, according to the latest biographical details she submitted to the Senate.
Last autumn, at a black-tie gala hosted by the Federalist Society, McGahn celebrated the Trump administration’s two supreme court appointees as well as the confirmation of dozens of new appeals court judges with rock-solid conservative credentials such as Barrett and Willett.
“In the last 25 years, we have seen our views go from the fringe – views that in years past would inhibit someone’s chances to be considered for the federal bench – to being the centre of the conversation,” McGahn said. “Now, we are the mainstream.”
On the bench and in a mounting number of public appearances, Barrett has consistently embraced Scalia’s approach to the law. “His judicial philosophy is mine, too,” she said last month when Trump announced his second nomination of her. But legal experts said there were important differences between the two judges, starting with their demeanour.
“Given the graciousness and charm that we all saw at the Rose Garden ceremony, she potentially could be very influential behind the scenes in ways that her mentor, with his sharper elbows, might not have been,” Ilya Shapiro, a lawyer with the Cato Institute, a libertarian group, said at a Heritage Foundation briefing.
On the appeals court, Barrett compiled a largely conservative record, expressing repeated misgivings about rulings striking down laws restricting abortion. She argued for an expansive view of gun rights, and she has voted to allow executions to proceed, which was telling.
“Her opinions in death penalty-related cases certainly are not in line with church teaching,” Jonathan H Adler, a law professor at Case Western Reserve University, said at the Heritage event, “and further suggest that she understands the oath she gives as a jurist is to apply the law before her whether or not that coincides with her personal moral or other beliefs.”
But Barrett’s broad commitments to originalism and textualism do little to predict how she will vote on the supreme court, and some legal experts said they did not expect her to join decisions like the court’s ruling in June that a landmark 1964 civil rights law prohibited job discrimination against gay and transgender people. The majority opinion was written by Gorsuch, perhaps the court’s leading textualist.
“In contrast to Justice Gorsuch, who seems to have more of Scalia’s libertarian bent than does Barrett, her style of conservatism doesn’t seem to hold any promise for LGBTQ rights,” said Wydra, of the liberal Constitutional Accountability Center. “In fact, unlike some corners of the Federalist Society world, Barrett’s record doesn’t reflect really at all the type of conservative libertarianism that we’ve seen come out in decisions from Chief Justice Roberts, Justice Gorsuch or the late justice Scalia.”
Barrett has acknowledged that judges using Scalia’s methods do not always agree, and she has broken from some Republican-appointed colleagues on the bench. Severino, head of the conservative Judicial Crisis Network, praised a particularly provocative dissent of 2019, in which the judge disagreed with two Reagan appointees and argued that a felon ought not have his gun rights taken away unless he had a history of violence. “It’s subtly brave,” Severino said of Barrett’s willingness to express an unpopular position.
Severino was in the audience last month as conservatives gathered in the White House Rose Garden for Trump’s announcement of the nomination. So were other members of the conservative legal establishment, and 18 faculty and staff members from Notre Dame.
But the process itself, a race to fill a supreme court seat weeks before a presidential election and in the middle of a pandemic, has already cost her some support. While the Notre Dame law faculty and her former fellow supreme court clerks generally supported her for the appeals court, some have said they will not line up behind her this time.
That includes Pat Hackett, the Democratic nominee for Congress in Indiana’s second congressional district and an adjunct professor of law at Notre Dame who is among the school’s progressive minority. “My concern is not that Judge Barrett is Catholic,” she said, going on to criticise what she called extreme originalism. “There’s a presumption of correctness or moral propriety,” she said. “There’s an effort to undermine the rich diversity of the American people.”
With her husband and children in the front row at last month’s White House ceremony, Barrett suggested she would try to bridge the bitter divides, invoking the friendship between Ginsburg and Scalia, who had “disagreed fiercely in print without rancour in person”, she said.
“If confirmed, I would not assume that role for the sake of those in my own circle and certainly not for my own sake,” she said, directly addressing the American people. “I would assume this role to serve you.” –New York Times