News reports and social media commentators have repeatedly claimed that Judge Amy Coney Barrett, the frontrunner to succeed Justice Ruth Bader Ginsburg of the Supreme Court, argued Catholic judges must recuse themselves from death penalty cases in a 1998 law review article. In fact, the paper argues almost the opposite.
Democrats and allied advocacy groups made the article, "Catholic Judges in Capital Cases," a centerpiece of their opposition to her nomination to the Seventh U.S. Circuit Court of Appeals in 2017. They cited the piece as evidence that Barrett believes judges should privilege their religious beliefs over the law if the two conflict, and a fresh round of imprecise reporting is feeding that charge.
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Barrett and her coauthor say that Catholic judges with conscientious objections to capital punishment are morally and legally required to recuse themselves from the sentencing phase of a death penalty case. The article concludes, however, that a faithful Catholic judge can participate in most other parts of death penalty litigation, including the trial phase of a capital prosecution and post-conviction reviews involving death row inmates. Death penalty appeals are a closer question, but the authors say Catholic objectors can hear such cases in most instances.
Barrett herself said she does not feel obligated to step back from any kind of case when she testified before the Senate Judiciary Committee in September 2017.
"Sitting here today, I can't think of any cases or category of cases on which I would feel obliged to recuse on grounds of conscience," she said.
As a Supreme Court justice, Barrett would have a steady diet of death penalty appeals. By the article's lights, many of them would not raise problems for a Catholic judge because they deal with auxiliary issues—like trial procedure or jury instructions—and not the sentence itself. Appeals related to sentencing are trickier, but a Catholic's involvement may be allowed given the nature of appellate review. The job of an appeals judge is to "check for a few defects," the authors note, and decide whether a decision is allowed under the law—not to endorse the decision. The paper stresses that a Catholic judge should not bend the law to "save a life by cheating."
Barrett has already participated in a death penalty case involving Daniel Lewis Lee, a federal death row inmate who was executed in July for murdering a family of three and stealing their possessions to support a white-supremacist organization. Days before he was put to death, Barrett sat on a three-judge appeals panel that lifted an injunction pausing Lee's execution because of the pandemic. Relatives of Lee's victims were slated to be on hand for the execution, but were unable to travel due to the coronavirus. A federal district judge said the government was wrong to schedule the execution without considering the relatives' right to observe the execution. Barrett joined an opinion lifting that order.
By her article's reasoning, Barrett's participation was permissible because the issue—whether the government should have considered the relatives' right to be present—did not concern the capital sentence itself.
Barrett was the second author on the piece with John Garvey, himself a prominent Catholic scholar who currently serves as president of Catholic University in Washington, D.C. In her 2017 testimony to the Senate Judiciary Committee, Barrett said that Garvey asked for her support while she was a third-year law student at Notre Dame. If the article becomes a problem for her prospective nomination this time around, her subordinate position could provide an escape hatch.
"I was very much the junior partner in our collaboration, and that was appropriate given our relative statures," Barrett said during her 2017 testimony.
Barrett's religious views are expected to feature prominently in the confirmation battle if she is selected for the High Court. Democratic lawmakers bungled questions about the intersection of her faith and her legal views during her appeals court confirmation in 2017. Sen. Dianne Feinstein (D., Calif.) told Barrett that "the dogma lives loudly within you," in reference to her past writings. The hearing made Barrett a conservative folk hero and Supreme Court frontrunner almost instantaneously. President Donald Trump is spoiling for a repeat of that 2017 fight, hoping Democratic missteps will reverse his flagging numbers with evangelical and Catholic voters.