Amy Coney Barrett sees law ‘impersonality’ in deciding cases

First of two parts.

The black robe Judge Amy Coney Barrett dons to take the bench on the 7th U.S. Circuit Court of Appeals is more than an accident of historical fashion. It’s a symbol of the way she says she believes a judge should approach the law.

In a speech last year at Hillsdale College in the District of Columbia, Judge Barrett said it wasn’t always that way. At the country’s founding, some judges wore red robes, which was the custom in England. Others wore robes with colors of the institutions where they had studied law.

Then along came Chief Justice John Marshall, who showed up for his investiture wearing a simple black robe. Soon his high court colleagues were also wearing black, and the rest of the judiciary followed.

The black robe, Judge Barrett said, is “the symbol of the impersonality of the law.”

“The focus should not be on who is deciding a case. The focus shouldn’t be on the judge. The judge shouldn’t be drawing attention to herself or himself. The focus should be on the law,” she said at the Hillsdale event.

As Judge Barrett prepares for her confirmation hearings to the Supreme Court next week, she likely will repeat that mantra often as senators from both sides of the aisle push her to reveal how she would approach a seat on the top court.

Checking off the boxes

Sitting at the witness table wasn’t a lifelong dream. It wasn’t even clear growing up that Judge Barrett would go into the law, according to family and childhood friends.

“I don’t think she ever dreamed she would be on the 7th Circuit Court of Appeals and that she would be a Supreme Court potential,” said Megan Edwards, Judge Barrett’s sister.

Yet Judge Barrett was checking off all the boxes along the way.

The daughter of a lawyer, she would earn a law degree from Notre Dame University, would marry a fellow lawyer, would clerk for Justice Antonin Scalia at the Supreme Court and then teach law at Notre Dame before being tapped in 2017 for a seat on the Chicago-based federal appeals court.

“Amy was just a master at synthesizing all of the various principles of law,” said Traci Lovitt, who clerked with Judge Barrett at the Supreme Court in 1988. “She is a legal natural.”

Ms. Lovitt, who works at Jones Day, clerked for now-retired Supreme Court Justice Sandra Day O’Connor while Judge Barrett clerked for Scalia.

The two became friends. They would go on runs around D.C. together in the evenings after long days of clerking at the high court.

“The way she was analyzing cases, she came to an answer she thought was right. She would advocate based on her analysis — not from her heart — from her head,” Ms. Lovitt told The Washington Times. “You know she is not coming with an agenda.”

Striking a balance

In her Hillsdale remarks last year, Judge Barrett repeatedly came back to that point.

“I think you get into a dangerous place when you say you’re going to follow your heart and not your head in deciding a case,” she said.

She said compassion has no place to play in a legal decision, though it does come into play when she writes her opinions.

She said she even has a tactic to strike that balance.

When writing an opinion, she imagines that she or someone close to her is the losing party in the ruling she is issuing. Judge Barrett said it helps her test her ruling and helps her explain her decisions.

“Let’s imagine it’s a criminal case, so I try to imagine it’s one of my children who’s on the losing side, to try to check and make sure am I deciding this case in the most honest way,” she said. “Could I honestly say this reasoning is one I would apply to someone I love dearly?”

She said she also ascribes to the philosophy of Scalia, who said a judge who liked the outcome of all of his rulings was probably failing as a judge.

“You are not there to decide cases as you may prefer. You are not there to decide cases as the public or as the press may want you to. You’re not there to win a popularity contest. You are there to do your duty,” Judge Barrett said.

If the job of judging meant imposing her own policy preferences, she said, she would have no interest in it. Besides, she said, there would be no point. The country already has legislators.

Judges, in their black robes, are supposed to be different.

“The back robe symbolizes that all judges share a dedication to the rule of law — that we are engaged in a common enterprise of applying the law,” she said at Hillsdale.

Scalia’s influence

Peers label Judge Barrett as an “originalist” and a “textualist,” much like Scalia, who had a professional and personal influence on Judge Barrett’s life.

“She talked about his fairness and just how he was on the court and how thorough and also how filled with love he was. He really treated everybody around him with love and respect, and she was particularly struck with the relationship he maintained with Justice Ginsburg despite their differences,” Ms. Edwards told The Washington Times.

“For her, I can see that was something she admired because that is something she actively tries to do in her life now, is to be fair, not pass judgment. She really tries to unify people despite their differences,” Ms. Edwards said. “Out of love is formed unity, and that is how she lives her life.”

Judge Barrett said she would be mindful of the justice who came before her if confirmed, honoring the late Justice Ruth Bader Ginsburg, whose seat she would fill.

“She was a woman of enormous talent and consequence, and her life of public service serves as an example to us all. Particularly poignant to me was her long and deep friendship with Justice Antonin Scalia, my own mentor,” Judge Barrett said during her Sept. 26 speech at the White House accepting President Trump’s nomination.

She noted that Scalia and Ginsburg would disagree in legal writings “without rancor” face to face.

“These two great Americans demonstrated that arguments, even about matters of great consequence, need not destroy affection. In both my personal and professional relationships, I strive to meet that standard,” she said.

Laura Wolk, who was one of Judge Barrett’s students at Notre Dame and graduated in 2016, said she experienced Judge Barrett’s kindness personally.

Ms. Wolk is blind. She was unable to complete classwork at the beginning of law school because she was waiting for some technology to arrive.

“I could depend on her and trust her,” Ms. Wolk said during an event hosted by the conservative Heritage Foundation last week. “She told me, ’This is not your problem anymore. This is my problem, and I will take care of this for you.’”

Carter Snead, a professor with Judge Barrett at Notre Dame, told the Heritage audience that his colleague distinguished herself through humility and generosity at the prestigious school, where she was named teacher of the year three times, which he noted was likely a record.

“Judge Barrett is a human being like no one you’ve met in your life,” he said.