O. Carter Snead is a professor of law at the University of Notre Dame and author of the forthcoming book “What It Means to be Human: The Case for the Body in Public Bioethics.”
There is nothing to fear about Barrett’s intellect. She has an incandescent mind that has won the admiration of colleagues across the ideological spectrum. Harvard law professor Noah Feldman, a respected liberal legal commentator who, like Barrett, was a Supreme Court clerk during the October 1998 term, has observed that Barrett may well have been the smartest person in that year’s pool of top young legal talent. “Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities,” he wrote in 2018, “is going to lose. Badly.” Barrett has confirmed her brilliance many times over as both a scholar and a teacher, for which she has been recognized three times by Notre Dame law students as professor of the year.
Even more reassuring to Barrett skeptics should be her remarkable humility. There are plenty of smart people in elite academia and on the federal bench, but few with Barrett’s generosity of spirit. She genuinely seeks to understand others’ arguments and does not regard them as mere obstacles to be overcome on the way to reaching a preferred conclusion. Time and again, I have seen her gently reframe a colleague’s arguments to make them stronger, even when she disagreed with them. And she is not afraid to change her own mind in the search for the truth, as I have seen in several of our faculty seminars. Such open-mindedness is exactly what we want of our judges — and what we can expect Barrett to bring to the Supreme Court, because that is who she has always been.
There is no need to fear Barrett’s faith. To the contrary, her commitment to treating others with respect grows directly out of her religious convictions. But Barrett’s love of neighbor goes beyond merely treating others with dignity. In all the time I have known her, I have never once seen Barrett place her needs above those of others.
A few years ago, a blind student matriculated as a first-year law student at Notre Dame. Upon arrival, she encountered delays in getting the technological support she needed to carry out her studies. After only a few days in Barrett’s class, the student asked her for advice. Barrett’s response was “This is no longer your problem. It is my problem.” Barrett followed up with the university administration herself, got the student what she needed, and then mentored her for three years. That student just completed her service as the first blind female Supreme Court clerk in U.S. history.
While Barrett’s faith is the source of her selflessness, it is not a source of authority for her work as a judge. Indeed, during her 2017 confirmation hearings, she stated as much under oath. A progressive former colleague from Barrett’s clerkship days — from Ginsburg’s chambers no less — affirmed that Barrett is “not at all ideological” and believes that she will “try as hard as anyone can to bracket the views she has as she decides cases.”
While Barrett would not draw on any extralegal source of authority — be it religious, moral or political — as a justice, some may still worry about her views on legal precedent. Barrett appears to follow the jurisprudence of her mentor, Justice Antonin Scalia, in looking to the original meaning of the Constitution’s text to evaluate past decisions of the Supreme Court. This approach can stand in tension with the doctrine of stare decisis, which counsels justices to account for pragmatic considerations, such as the disruptive effects of upending precedents Americans have come to rely on, before reversing a prior decision.
Yet here, too, because of her integrity and rigor, there is no reason to fear that Barrett would casually discard precedents that conflict with the Constitution’s original meaning, or even a statute’s plain meaning. Her past scholarship, including a 2017 law review article, makes clear that she appreciates the tensions between originalism and stare decisis. There she wrote that there is nothing in originalist jurisprudence that requires justices to seek the reversal of precedents on their own initiative.
There is of course no way to know in advance how a Justice Barrett would rule on hot-button cases. What is clear is that she would carefully analyze each case on its merits, respectful of the stakes for both the rule of law and the stability of our polity, doing her level best to get the question right, regardless of her own personal views.
At a time when there is so much to worry about in our troubled nation, having a Supreme Court justice who brings such honesty and integrity to her work should be the least of our fears.
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