By Emma Brown and Jon Swaine
Amy Coney Barrett, President Trump’s nominee to replace Ruth Bader Ginsburg on the Supreme Court, publicly grappled decades ago with the tension Catholic judges can face between their religious values and the law. She has since said that she would never bend the law to meet her Catholic faith.
But her role as a speaker at a training program for Christian law school students drew scrutiny three years ago when Trump nominated her to be a federal appellate judge. It may do so again now — as part of broader questioning about how she would balance faith and law — as she seeks confirmation to the nation’s high court.
Barrett was a paid speaker five times, starting in 2011, at the Blackstone Legal Fellowship, a summer program established to inspire a “distinctly Christian worldview in every area of law,” tax filings show. It was founded to show students “how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America.”
The Blackstone program is run by Alliance Defending Freedom, a legal advocacy group whose founding leader has questioned the “so-called separation of church and state” as it is often understood. In the years Barrett spoke there, the fellowship’s suggested reading list included a book co-written by the same leader that lamented how Christians for too long had been “AWOL from the courthouse.”
When Barrett was before the Senate in 2017, to be confirmed as a judge on the U.S. Court of Appeals for the 7th Circuit, she was asked about those speaking engagements and grilled particularly on ADF’s stance on gay rights. Senators did not address the program’s goal of connecting Christian teachings to the practice of law, which has been little noted in the context of Barrett’s role on the courts.
“I would never impose my own personal convictions upon the law,” Barrett said at the time, when asked whether her deeply held faith was at odds with her ability to render impartial judgments.
Judd Deere, a White House spokesman, said in a statement in response to questions for this article: “Judge Barrett has said that as a judge she’s not a policymaker and that it’s not appropriate for her or any judge to follow their personal convictions in deciding a case, which is also one of the many reasons President Trump laid out as to why he selected her as his nominee to the Supreme Court.”
Already, Barrett’s supporters are rejecting the notion, floated by some critics, that her faith might unduly influence her jurisprudence. “Judge Barrett has proven herself a highly capable legal scholar and jurist committed to the Constitution and the rule of law, and all Americans — including but especially Catholics — should recoil at the suggestion that her faith and personal life would prescribe otherwise,” Michael P. Moreland, a professor of law and religion at Villanova University, wrote in the National Review on Friday.
Barrett, a favorite of social conservatives, has argued that justices should not be bound by a court precedent that they believe is out of step with the Constitution. That position has led many to argue she may vote to overturn Roe v. Wade, the landmark 1973 decision that legalized abortion.
Sen. Josh Hawley (R-Mo.) has said that he will only support a nominee who explicitly acknowledges that Roe v. Wade was wrongly decided. Last week, Hawley — who also has served as a Blackstone faculty member — said Barrett “clearly meets that threshold.”
As a federal appellate judge, Barrett has ruled skeptically about a broad interpretation of abortion rights, and has shown a willingness to entertain state restrictions on the procedure. But she has been on the bench for only three years, and in most instances was joining more senior colleagues in opinions they wrote.
In the most notable abortion case, Barrett joined in a dissent that said the Supreme Court’s decision in Planned Parenthood v. Casey, which reinforced the right of a woman to choose abortion before viability, had not considered whether the reason for choosing to terminate a pregnancy might matter.
In another case, she joined in a decision to reluctantly uphold a Chicago law that put restrictions on antiabortion protesters near abortion clinics. Although the majority wrote that it was bound by a Supreme Court precedent, it questioned whether that precedent had been undermined by subsequent decisions on the subject.
It is not possible to fully know from past rulings what any nominee would actually do once on the court. Appeals court judges are bound by precedent in a way that justices are not; only the latter can overturn Supreme Court precedent.
In her 2017 confirmation hearing, in response to the suggestion that she might be a “no vote on Roe,” Barrett said: “I’m being considered for a position on a Court of Appeals, and there would be no opportunity to be a no vote on Roe. And as I said to the [Judiciary] committee, I would faithfully apply all Supreme Court precedent.”
Also in that hearing, Sen. Dianne Feinstein (D-Calif.) told Barrett that based on her public statements, Feinstein was uncomfortable with her nomination, because “the dogma lives loudly within you.” The comment provoked a furious backlash, with conservatives accusing Feinstein of seeking to impose a religious test on judicial nominees, and some Democrats now argue that the upcoming confirmation battle should focus on the future of the Affordable Care Act and on the legitimacy of Barrett’s nomination rather than on her faith.
Al Franken, then a Democratic senator from Minnesota, asked Barrett in 2017 why she agreed to speak at the ADF’s training program, for a group that he said “fights against equal treatment of LGBT people.” She participated in the program once in Alexandria, Va., and four times in Phoenix, near ADF’s Scottsdale headquarters.
“I question your judgment,” Franken said.
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