[Content note: This piece discusses an alleged campus sexual assault and attempted suicide at length.]
At some point in the next five weeks, Notre Dame law professor Amy Coney Barrett will likely be in front of the Senate Judiciary Committee for the second time in four years. Originally nominated by Donald Trump and confirmed to the Court of Appeals for the Seventh Circuit in 2017, she was on the short list of potential nominees to replace Anthony Kennedy on the Supreme Court in 2018, and, at the time of this writing, is all but locked in as the nominee to replace Ruth Bader Ginsburg before the presidential election.
Barrett’s 2017 confirmation hearings became infamous when Democratic ranking member Dianne Feinstein told her “when I read your speeches, the conclusion one draws is that the dogma lives loudly within you.” Feinstein was likely referring to Barrett’s devout Catholicism and ties to a religious community in South Bend called People of Praise, which is a cross-denominational Christian group that arose out of the Catholic “charismatic revival” of the 1960s and 70s. People of Praise and other charismatic groups have been the subject of theological and sociological critiques for decades, often by ex-members, and reporting will sometimes characterize these groups as “cult-like”. They usually have rigidly hierarchical structures, often with an emphasis on traditional gender roles, and require loyalty-oath-style “covenants” for members. People of Praise, in particular, tends to be pretty secretive about what they do, and Barrett refuses to comment about her involvement in the group at all, so I can understand why that could make outside observers uncomfortable.
Still, Feinstein shouldn’t have said what she said; it made it too easy for Republicans to claim that all of the opposition to Barrett’s nomination was driven by anti-Catholic bias – a tactic they’re likely to use again in the upcoming Supreme Court confirmation process, after which Barrett would be the sixth practicing Catholic on the Court – and it also inspired dozens of bizarre coffee mugs on Etsy that proud conservative Catholics could use to show off their pride in their faith.
The other reason that Feinstein shouldn’t have said this is that there are real reasons to oppose Barrett’s confirmation as a judge and justice that have nothing to do with her faith. The “dogma lives loudly” within Amy Coney Barrett, but it’s not Catholic dogma, it’s the same originalist dogma you can find living in every other reactionary judge. The reason Barrett shouldn’t be on the bench isn’t that she’s a Catholic zealot; she very well could be a Catholic zealot, but that doesn’t matter. Her career, and her recent legal papers and judicial decisions, show us a woman who has worked hard to get to the Supreme Court, who has seen Donald Trump reshape the federal judiciary by nominating more than a quarter of the current federal bench to lifetime appointments, and who eagerly wants to be a part of that movement. She has followed the standard career path for aspiring justices: graduated from a ranked law school Summa Cum Laude and Phi Beta Kappa, edited her school’s law review, clerked for Justice Scalia, worked at a boutique law firm for power players in DC before returning to academia, and currently sits on the federal appeals bench. Two of her more recent papers illustrate just how dogmatically conservative she is as a jurist, and how dangerous she would be on the Court.
The first is a 2017 paper that Barrett authored for the Notre Dame Law Review titled “Originalism and Stare Decisis”, where Barrett reviewed the late Justice Scalia’s Supreme Court opinions and examined how he, in Barrett’s opinion, brilliantly balanced these two seemingly opposed poles. The final sentence of the article is literally “Nothing is flawless, but I, for one, find it impossible to say that Justice Scalia did his job badly”, so it’s worth understanding what Barrett sees as the most praiseworthy Scalia decisions and the ideal judicial balancing act.
In the context of Barrett’s paper, originalism is the idea that the Constitution and federal law was best interpreted through the original intent of the writers of the Constitution, putting aside things like later legislation or historical context; Scalia was key to bringing this philosophy to the federal judiciary. Stare decisis, in contrast, is the idea that the Supreme Court should be very reluctant to overturn its own precedent, that there needs to be consistency in what the Court decides on issues, even if the justices turn over. When judicial appointees are asked about stare decisis – as Barrett was, multiple times in her confirmation hearing for the circuit court – they’re usually being asked in a roundabout way about abortion, and whether they’d be willing to overturn precedents like Roe and Casey. Nobody in the Senate asks these questions directly, and no appointees answer these questions directly, but the questions and answers are definitely there.
In Barrett’s article, though, she praises Scalia for being willing to overturn Supreme Court precedent all the time, and finding a way to balance that with his originalist approach to constitutional law. As she put it:
“Justice Scalia framed some of his most vociferous disagreements with Supreme Court precedent as a defense of a competing form of precedent: the history and traditions of the American people…he argued…that Miranda v. Arizona should be discarded for its lack of support in “history, precedent, or common sense.” He was persistent in his view that “the Double Jeopardy Clause prohibits successive prosecution, not successive punishment,” and…he repeatedly argued that the Court should overrule its cases holding that a woman has a substantive due process right to terminate her pregnancy.”
I’m not entirely sure that either Scalia or Barrett should be bragging about fighting against Miranda rights, or fighting to get around double jeopardy and punish defendants multiple times. What’s very striking, though, is that Barrett left out a lot of Scalia’s most infamous decisions, the ones where he ignored both precedent and originalism to just advocate for the most horrible outcome possible. In 2005’s Castle Rock v. Gonzales, Scalia ignored the literal, textual meaning of a Colorado state law explicitly worded and passed to mandate that police enforce restraining orders, essentially telling a woman who had her three children murdered by her ex-husband to fuck off. The originalist interpretation of the Second Amendment does not guarantee an unrestricted right to individual handgun or semiautomatic weapon ownership, because there weren’t handguns or semiautomatic weapons when the Second Amendment was written and the explicit text of the amendment regard militia membership, but Scalia found a way to make it all work in 2008’s DC v. Heller, overturning centuries of jurisprudence on guns. In his dissent in 1992’s Planned Parenthood v. Casey, he straight-up said that Roe should be overturned because abortion was clearly immoral and stare decisis didn’t matter. His dissent in 1992’s Lawrence v. Texas, the case which struck down anti-sodomy laws, is basically one giant homophobic rant in which Scalia also speaks directly to how he views the importance of stare decisis, but Barrett decides not to touch it, possibly because if you want to write a paper on how great Scalia is, you can’t include anything from a judicial opinion where he compares gay sex to heroin addiction.
Barrett’s paper doesn’t touch any of these, but it manages to go somewhere very dark indeed when she gets into Eighth Amendment opinions, regarding cruel and unusual punishment:
“Justice Scalia thought that the Court’s Eighth Amendment cases were flawed in at least two respects. First, he thought that the Court should look to the original application of the Eighth Amendment, not evolving standards of decency, to determine whether a punishment was “cruel and unusual.” Second, he rejected the proposition that the Eighth Amendment requires that a punishment be proportionate to the offense.”
Barrett’s footnote to this unsettling passage praised Scalia for 1989’s Stanford v. Kentucky decision where he was apparently principled enough to uphold the death penalty for minors and reject that these executions would violate the Eighth Amendment (the Court would eventually overturn this precedent). Scalia wasn’t technically sentencing someone to death in this case – he was upholding an existing sentence – but this is a man who could opine on the morality of abortion from the bench and make it clear that he would change abortion laws if he could, and he was ready to enforce the death penalty for minors, and to Barrett two decades later, this was a brilliant balancing act between originalism and the will of the American people.
Scalia’s originalism, in practice, appears to mean “doing whatever will cause the most pain to the people who are not in power”. His philosophy is not any remarkable feat of analysis, but it is key to Barrett’s judicial philosophy.
And that’s the real problem with Barrett: not her People of Praise membership, or her Catholicism at all, but rather the political machine that takes Catholics and turns them into awful reactionary judges. She knew about this machine and threw herself into it; this paper about Scalia was published shortly after the election of a president who campaigned on filling Scalia’s seat with a judge like Scalia. She was paying dues to the Federalist Society, the professional pipeline for Republican judges. She was working very hard to get on the federal bench. I don’t know what she said to Trump when she was nominated, but I doubt it was “aw shucks how did you find me?”
All of that said, though, we’ve talked a lot about Barrett’s possible judicial philosophy and the judge she learned the most from, but she’s been a judge herself for less than three years. And in that short period, she’s already handed down some very bad decisions, but perhaps none were worse than 2019’s Doe v. Purdue University.
Doe v. Purdue University is a complex case involving a campus sexual assault. The plaintiff is a former undergrad at Purdue referred to as John Doe, who was dating a woman while a student at the university, referred to as Jane. Jane alleges that Doe sexually assaulted her, and after their relationship ended, she attempted to take her own life, which Doe witnessed and reported to the university. After attending a campus sexual assault awareness event long after this relationship ended, Jane reported her assault, and Doe was suspended from the university after being found guilty in a disciplinary hearing.
Doe sued the university in federal court, claiming that the hearing was essentially a sham and revenge for reporting Jane’s attempted suicide. There were a lot of different claims in Doe’s suit, almost all of which were dismissed by the district court for various reasons, but I want to focus on Doe’s most eye-catching claim. Doe never faced criminal charges for the alleged assault; his hearing at Purdue wasn’t a criminal trial, it was a disciplinary hearing by the university, which, by design and formally under Title IX law, are not criminal trials and don’t have the same standards of evidence that you would need for a criminal conviction.
One of Doe’s claims, however, was that his own Title IX rights had been violated, because Purdue’s methods for handling sexual assault accusations were inherently biased against men, given that men were disciplined for sexual assault more often than women. If you are familiar at all with policies on campus sexual assault from the past decade, you know that this sort of thinking is repugnant. Title IX is the reason why universities have tried to step up in the past decade to investigate sexual assault and do more for victims, because not doing so, under guidelines issued by the Obama administration in 2011, would amount to a civil rights violation on the basis of gender. Doe asserted that the true victims of this policy were the men.
As you probably have guessed, this is not how Title IX is actually supposed to work. This was one of his claims that the district court dismissed with prejudice, writing:
“Plaintiff attempts to demonstrate a pattern of gender bias by alleging that the totality of the circumstances establishes that Purdue has ‘demonstrated a pattern of inherent and systematic gender bias and discrimination against male students accused of misconduct.’ Plaintiff alleges that, ‘on information and belief,’ ‘all students that have been suspended or expelled from Defendant Purdue for sexual misconduct have been male.’ And, ‘[m]ale respondents, and particularly male athletes and male ROTC members, in sexual misconduct cases at Defendant Purdue are discriminated against solely on the basis of sex. They are invariably found guilty, regardless of the evidence, or lack thereof.’ None of these allegations offer statistics or facts to support a pattern of gender discrimination; again, even if all the respondents were male and all were punished, without more, this only alleges victim bias, and not gender bias.”
Victim bias is supposed to be part of the investigative process on college campuses, because if you don’t build it in there, it becomes incredibly easy for universities and accused assaulters to game the system to keep assaults under wraps, as history has shown us. Doe wasn’t thrilled with the result, so he appealed, and his case landed in the Seventh Circuit, and Barrett, a woman tied to the rigidly hierarchical People of Praise, the woman who idolized Antonin Scalia, and the woman actively auditioning to be Donald Trump’s next Supreme Court pick, got to weigh in on whether men were victims of discrimination.
Barrett reversed the district court’s dismissal, and the case was remanded back to the district court. According to her, the hearing did not do enough to investigate whether the victim of the alleged assault was just a crazy lady who probably wasn’t right in the head. From her opinion:
“[Purdue’s Dean of Students] Sermersheim and the Advisory Committee’s failure to make any attempt to examine Jane’s credibility is all the more troubling because John identified specific impeachment evidence. He said that Jane was depressed, had attempted suicide, and was angry at him for reporting the attempt…And John insisted that Jane’s behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had committed sexual violence against her.”
Depression, inconsistent behavior, an assault by someone she already knew: it’s precisely because the legal system will dismiss victims, for these exact reasons, that sexual assault is so hard to prosecute and investigate. Barrett may as well have speculated as to what Jane was wearing at the time of the alleged assault, and she did wonder why Jane didn’t bother to relive her assault directly as part of the disciplinary process:
“The case against [Doe] boiled down to a “he said/she said”—Purdue had to decide whether to believe John or Jane. Sermersheim’s explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words to the Advisory Committee. Her side of the story was relayed in a letter submitted by Bloom, a Title IX coordinator and the director of CARE [Purdue’s Center for Advocacy, Response, and Education].”
Jane submitted her statement through the school’s Title IX coordinator, which Barrett thinks is suspect, but the 2011 guidance from the Department of Education explicitly set up measures like these so that a victim and alleged perpetrator wouldn’t have to confront each other directly. Barrett is, at best, being incredibly ignorant here. The reasons that she lists for reversing the district court’s judgment are the exact reasons that there was an epidemic of campus sexual assaults in the 200s and 2010s to begin with: students didn’t have a place to go to report assaults knowing that there would be followups, victims’ trauma was used to discredit their stories, and too many people waved these assaults off as “he said/she said” cases. But Barrett – who was and still is on the faculty of a university that also had to strengthen its Title IX procedures in the 2010s and was the subject of national news and an Oscar-nominated documentary, with an original song by Lady Gaga, precisely because of how bad they were at handling sexual assault cases – doesn’t seem to be aware of any of this. The main thing she’s aware of is this:
“It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve [Plaintiff] because he is a man. The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that Doe was disciplined: an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are.” Construing reasonable inferences in Doe’s favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault.”
The gist of that Post article is that policy solutions for campus sexual assault should include more bystander training, as tighter alcohol policy isn’t going to do enough to stop people from being assaulted. It’s literally in the subheadline of the article – you don’t even need to log in with a WaPo account to get to that! – but I’m not even sure Barrett Googled it or just saw the headline and wrote a judicial opinion based on that.
Barrett has been working for years to get onto the Supreme Court, which means that in order to advance in her career, she needs to, above all, be the kind of person that Donald Trump considers impressive. So she wrote about how great Antonin Scalia was, she paid dues to the Federalist Society, and with Doe v. Purdue, she had the chance to undercut a well-known Obama-era regulation and strike a blow for male victimhood. Congratulations to her for getting one step closer to a seat on the court.
Again, the most horrifying thing about Barrett is not People of Praise, it’s not her religious views, it’s all of the steps that she has taken throughout her career to impress Donald Trump and eventually get on the Roberts Court. As democratic socialists, we fight in a movement for the many, and the Supreme Court’s role in cementing anti-majority policy is something that horrifies us. But it’s something that encourages Barrett.
Even if I only limit myself to decisions the Roberts Court has made since Trump has become president, I can find decisions that range from infuriating to truly evil. In Janus v. AFSCME, the Court gutted the power of public sector unions, in a case where the U.S. bishops actually wrote an amicus brief asking the Court to rule the other way. In RNC V. DNC 2020, the Court threw out thousands of absentee ballots in Wisconsin, forcing primary voters to go and vote in a pandemic during a shelter-in-place order if they wanted their vote counted; dozens of new COVID cases were tied to this election. Perhaps their most egregious decision has been Trump v. Hawaii, which upheld the Muslim immigration ban, and signalled that this court would be as deferent to the president as possible as he carried out his racist and inhumane policies. Barrett has seen all of this and said “I want to be a part of this, please, Mr. Trump.” That’s bad enough, even if I put aside gutting the Voting Rights Act or allowing unlimited campaign donations or arresting the expansion of Medicaid under the Affordable Care Act.
The most important moral questions we can ask, questions that we ask all the time as socialists, are “who has the power to change something here, and will they?” These justices have the power to change things in this broken country, more power than anyone else, and instead they choose to break the country further, and they’ll continue to do it in upcoming hearings on the 2020 election and the legality of the ACA. Barrett is volunteering herself to continue this tradition, and demonstrating in decisions like Doe that she’s fully on board with what’s currently happening. That is Barrett’s dogma, and that sort of dogmatism is a danger to our democracy.
Tony Ginocchio is a Chicago DSA member who writes Grift of the Holy Spirit, a series on the intersection of Catholicism and reactionary politics. You can read more at imaxafterlife.substack.com