The legal theories of Amy Coney Barrett, explained

“We know she identifies as an originalist who believes that the original public meaning of the Constitution is binding law. But we also know that she is skeptical of the radical libertarian originalist idea that economic regulation is presumptively unconstitutional, and that she believes some Supreme Court decisions that originalists may conclude are incorrectly decided nonetheless stand as “superprecedents” that the Court can abide by.

Her legal writing has also prompted heated reactions from detractors. One piece (with fellow law professor John Garvey) on when Catholic judges might be obligated to recuse themselves from death penalty casesprompted criticism from Senate Democrats during her appeals court confirmation hearings, who suggested Barrett was unable to separate her faith from her jurisprudence (a charge she strongly rejected).

Another piece (with late Notre Dame colleague John Copeland Nagle) on how members of Congress should incorporate the original meaning of the Constitution into their votes has raised the eyebrowsof some commentators, because it begins by noting that there are originalist arguments (which the paper itself does not accept, except for the sake of argument) to think that West Virginia was invalidly admitted as a state; that the 14th Amendment wasn’t properly ratified; and that paper money is unconstitutional, among other surprising conclusions.”

“She’s been pretty vocally committed to originalism as really being the guiding light, more so than some others. She is more explicitly committed to the notion that one ought to be an originalist, and that it is the primary principle for judges, than Roberts is, or than Kavanaugh historically was. In that sense, she’s a little more like Thomas and Gorsuch. She has a clear judicial philosophy, and originalism is at its core.”

“she has also suggested that judges ought to care more about stare decisis [the doctrine that courts should generally abide by their previous rulings] than Thomas tends to. I think she’s a more moderate figure in that regard than Thomas. She would be trying to navigate precedents that are in conflict or in tension with original meaning, rather than just thinking they ought to be tossed overboard.” 

“I’m glad you brought up stare decisis. A paper she wrote with her colleague John Copeland Nagle, “Congressional Originalism,” has caused a bit of concern among critics, in part because she leads with a list of precedents that arguably conflict with the original meaning of the Constitution.

Brown v. Board of Education is the most incendiary one, but she mentions arguments that West Virginia was invalidly admitted, that the 14th Amendment wasn’t properly ratified, that paper money is unconstitutional, and so forth. She doesn’t say she thinks they ought to be overruled — and indeed suggests that the point is moot in most cases as these issues would never come before the Court — but I think even putting up the examples has raised hackles.

How should people weighing her nomination think about that paper?”

“I tend not to think it’s terribly significant. To some degree, it is an academic enterprise of trying to think about, “What are the tensions here? What are the implications of adopting a certain theoretical perspective? What are the implications if you think there are tensions between the theory and some of these foundational constitutional decisions thathave been made over time, whether they are things like creating the state of West Virginia or things like Brown v. Board?” For her, that’s just a starting point for then trying to think about how to deal with the fact that there are going to be these tensions.

Importantly, her view was not, “you’ve got to go overturn all these decisions,””

” A lot of people have run with the notion that she’s emphasizing the significance of her religious belief and, likewise, the religious beliefs of other judges and justices. But I think it’s one of these cases where that’s the starting point for her, saying, “It is true that judges have religious beliefs. And those religious beliefs sometimes have implications for the kind of issues that come before the court.” And then the question is how judges ought to deal with that. Certainly her conclusion is not simply that judges ought to therefore impose their religious beliefs.”

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