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Amy Coney Barrett, possible Supreme Court nominee, has backed ‘flexible’ approach to court precedent

Amy Coney Barrett is rumored to be one of the leading names on President Trump's shortlist of potential Supreme Court justices. Here's why she's controversial. (Video: Elyse Samuels/The Washington Post)
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Amy Coney Barrett, a leading contender to fill the upcoming vacancy on the U.S. Supreme Court, has argued that justices should not be bound by court precedent in deciding whether to overturn landmark decisions that they deem out of step with the Constitution.

Barrett, a longtime Notre Dame law professor appointed by President Trump last year to the Court of Appeals for the Seventh Circuit, in legal articles has backed a “soft” and “flexible” interpretation of the legal principle honoring Supreme Court precedents, stare decisis.

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it,” she wrote in 2013 in the Texas Law Review. 

Barrett, who is among several judges Trump interviewed this week in his search to replace retiring Supreme Court Justice Anthony M. Kennedy, is facing intense scrutiny by liberal and conservative activists anxious to decipher her potential approach to challenges to the rights established under the landmark Roe v. Wade ruling. While judicial nominees typically avoid commenting on specific court rulings, Barrett’s philosophy on stare decisis — along with her religious views and her earlier writings on the topic — are being scoured for clues to how she might regard the 45-year-old decision that legalized most abortions.

From 2010 to 2016, Barrett, 46, belonged to the Notre Dame Chapter of the University Faculty for Life, which promotes antiabortion resources, according to a judicial questionnaire. In remarks on campus on the 40th anniversary of Roe v. Wade in 2013, Barrett described “her conviction that life begins at conception,” according to a university magazine. The magazine characterized her view of the court decision as “creating through judicial fiat a framework of abortion on demand.” 

Barrett has described herself as a “faithful Catholic.” She belongs to a close-knit, ecumenical group called People of Praise that, like other Christian groups, believes in the sanctity of life and opposes abortion, members say. The group was formed in 1971. Barrett served on the board of trustees of one of the group’s schools from 2010 to 2017, according to her judicial questionnaire.

During her confirmation hearing for the appeals court, Barrett sidestepped some direct questions about Roe. “As for your question about Roe, I think that the line that other nominees before the committee have drawn in refraining from comment about their agreement or disagreement or the merits or demerits of any Supreme Court precedent is a prudent one,” she said. 

Barrett said that as a member of the federal appeals court she would “follow all Supreme Court precedent without fail” and would regard decisions such as Roe v. Wade as binding precedent.

“I would never impose my own personal convictions upon the law,” she added.

In her Notre Dame talk in 2013, Barrett said it was “very unlikely” the high court would overturn the right to abortion, according to the university magazine.

Law professors who have written about stare decisis and reviewed Barrett’s articles said they would expect her to become part of a solid conservative majority on the high court, poised to topple Roe v. Wade if the opportunity should arise. Timothy R. Johnson, a professor of political science and law at the University of Minnesota, said Barrett’s legal scholarship “suggests she is more open-minded than other potential nominees” to overturning precedent. 

“Her writings lead you to turn your head a little,” he said. “It’s certainly troubling to the left because it does indicate a willingness to overturn Roe v Wade.”

Trump vowed during the 2016 campaign to appoint antiabortion justices to the high court and has predicted that Roe v. Wade would fall, though he recently said he had been advised not to ask potential nominees about the ruling.

Everyone on Trump’s short­list would overturn Roe v. Wade

The stare decisis  doctrine helps ensure that courts are evenhanded, predictable and consistent, but legal scholars acknowledge that respect for precedent must not be absolute. One example frequently cited to support this notion is Brown v. Board of Education, the 1954 landmark desegregation decision that upended the “separate but equal” ruling of Plessy v. Ferguson decades earlier.  

In the University of Colorado Law Review in 2003, Barrett wrote that the court should reconsider precedent if “a litigant demonstrates that precedent demonstrably conflicts with the statutory or constitutional provision it purports to interpret.” She called for a “flexible” doctrine that allows for “error-correction.”

That article and others by Barrett drew pointed questions from Senate Democrats during her 2017 confirmation hearing. Barrett was pressed on an article she co-wrote in 1998, in the Marquette Law Review, that said judges should not be compelled to rule in ways that contradict their religious views and that Catholic judges might therefore recuse themselves from some death penalty cases.

Sen. Dianne Feinstein (D-Calif.) said Barrett’s religious beliefs and her writings on court precedent made her a reliable vote to overturn Roe v. Wade.

“The dogma lives loudly within you,” Feinstein said. 

That remark provoked strong criticism from Republicans, as well as from the chairman of the U.S. Conference of Catholic Bishops, who denounced “anti-Catholic bigotry,” and Princeton University President Christopher L. Eisgruber, who wrote that questions about Barrett’s faith “were not consistent with the principle set forth in the Constitution’s ‘no religious test’ clause.”

In her confirmation hearing, Barrett insisted that the law, not her religious beliefs, would guide her on the bench. She said her views have evolved since she co-authored the death penalty article as a law school student two decades ago, and she noted her participation in capital cases as a clerk to Supreme Court Justice Antonin Scalia.

“A judge may never subvert the law or twist it in any way to match the judge’s convictions,” she said.

Barrett called herself a “faithful Catholic” at the hearing but did not talk about her involvement in People of Praise. The group, which has roots in the Pentecostal movement, includes 1,800 adults across the country, according to a brochure.

In an interview, Joe Zakas, a People of Praise member and longtime Indiana state senator, said group leaders never sought to influence his decision-making in public office. He said he has seen Barrett and her family at the group’s Sunday meetings.

“People admire her,” Zakas said. “As a community member and a lawyer, I am excited about her potential nomination.”

Andrew Ba Tran contributed to this report.

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