Curt Levey: Amy Coney Barrett’s judicial philosophy – here’s what skeptical Democrats are missing

on Oct13
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The Democrats have been doing a lot of projecting recently. Consider their worry that President Trump will refuse to accept the legitimacy of the 2020 election.

Now they are projecting their “living Constitution” judicial philosophy onto Supreme Court nominee Amy Coney Barrett.

Democrats and their allies worry that Judge Barrett, a devout Catholic, will impose her personal values and beliefs on the law. That’s exactly what Democrats want the progressive judges they appoint to do. So it’s a classic case of projection.

While the left is panicking that Barrett, if confirmed, will lead the Supreme Court to repeal Roe v. Wade and otherwise enact the teachings of the Catholic Church, the truth is that Judge Barrett is a committed textualist who can be counted on to interpret statutes and the Constitution as written.


As she said in a 2019 lecture, “The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. … Fidelity to the law means fidelity to the text as it is written.”

In her opening statement on Monday, Judge Barrett emphasized that “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” not by the courts.

Textualism gives effect to this ideal because the political branches speak through the words of the statutes they write, the constitutional amendments they enact, and the original Constitution they gave us in 1787.

Senate Democrats will nonetheless do their best this week to frighten Americans about the prospect of Amy Coney Barrett sitting on the Supreme Court. They will likely fail, because a justice who leaves policy decisions and value judgments to the people’s representatives is exactly what most Americans want.


The anxiety on the left is accurately summed up by Elizabeth Bruenig, an opinion writer for the New York Times, who writes of concerns about whether Judge Barrett “will be able or willing to resist the expectations of her church when it comes to cases involving relevant moral issues, and whether she will cater to the wishes of People of Praise, a mostly Catholic ecumenical organization with a distinctly traditional bent, of which she is a member.”


Bruenig worries that “Roman Catholicism does not readily distinguish between public and private moral obligations,” a projection of progressives’ difficulty distinguishing between what the law is and what they would like it to be.

This paranoia that Catholic judges will be unable or unwilling to separate their Catholic beliefs from their work on the bench is not new.

A justice who leaves policy decisions and value judgments to the people’s representatives is exactly what most Americans want.

At the 2003 confirmation hearing for Bill Pryor, now a judge on the U.S. Court of Appeals for the Eleventh Circuit, Democrats on the Senate Judiciary Committee told him it was hard to believe that his “very, very deeply held” Catholic beliefs would not “deeply influence” his interpretation of the law.

Those same Democrats were enraged when the Committee for Justice called them out with ads featuring a picture of shuttered courthouse doors and a sign reading “Catholics need not apply.”

During Barrett’s 2017 confirmation hearing for the Seventh Circuit, Sen. Diane Feinstein charged that Catholic “dogma lives loudly within you. And that’s of concern when you come to big issues.”

The following year, at Brian Buescher’s hearing for a federal district judgeship, Sens. Kamala Harris and Mazie Hirono subjected him to similar grilling about his association with the Knights of Columbus, a Catholic fraternal and philanthropic group.

At Judge Barrett’s hearing this week, Senate Democrats may steer clear of such blatant Catholic bashing this close to an election. But at very least, they’ll insinuate that her Catholic dogma will spill over into her work as a Supreme Court justice.

To understand why Democrats make this assumption about Barrett and other Catholic judges, you need to understand the left’s judicial philosophy: living constitution theory. It views the Constitution and even statutes as documents that evolve to adapt to changes in values, culture and politics. As Professor of Law Gerald Ratner of the University of Chicago explains:

“If the Constitution is not constant … then someone is changing it, and doing so according to his or her own ideas about what the Constitution should look like. … So a living Constitution becomes … just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us.”

When Democrats project this philosophy onto Barrett, they conclude that she too will use her power as a Supreme Court justice to impose her personal values on us, including those which spring from Catholicism.


Not only are Democrats skeptical that a conservative jurist can interpret the law as written, they also see that approach as a threat to their nearly century-long project of using judicial activism to mold the Constitution into what they want it to be. For example, pointing out that no right to abortion can be found anywhere in the words of the Constitution undermines Roe v. Wade.

When Senate Democrats tell you this week that Judge Barrett’s Catholicism will stand in the way of her dispassionately applying the law, remember that it’s the last thing they want.


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