October 26, 2020

Supreme Court Nominee Judge Amy Coney Barrett and the Death Penalty

By Annika Russell, DPRP Intern
Judge Amy Coney Barrett and her family with President Trump on September 26, 2020

Judge Amy Coney Barrett and her family with President Trump on September 26, 2020

Official White House Photo by Andrea Hanks

On Saturday, September 26, 2020, President Trump nominated Judge Amy Coney Barrett to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. During her nomination ceremony, Judge Barrett described the “incalculable influence” her former mentor Justice Antonin Scalia had on her life, stating, “his judicial philosophy is mine too.” Justice Scalia's conservative judicial philosophy—known as originalism or textualism—has been a frequently explored subject in Judge Barrett’s academic writings and is marked by strict adherence to the actual text of the Constitution. Judge Barrett is a strong conservative and devout Catholic who first became a judge after President Trump nominated her to the U.S. Court of Appeals for the Seventh Circuit in 2017. 

Because Judge Barrett’s time on the bench has been limited, many have tried looking outside of her judicial record for indications on how she will rule as a Supreme Court justice. For those interested in how Judge Barrett is likely to shape the Court in terms of its capital punishment jurisprudence, however, it is harder to know what effect her confirmation may have. While supporters of Judge Barrett are quick to argue that her faith should play no role in the Senate’s review of her nomination, she has previously suggested that there are circumstances in which a judge’s faith may shape her ability to rule on particular issues. 

One often-cited source is a 1998 law review article Judge Barrett co-authored when she was 26 years old, entitled “Catholic Judges in Capital Cases.” In that paper, she touted recusal as a “good solution” for Catholic judges who cannot be impartial in death penalty cases. Judge Barrett concluded that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” and that this moral dilemma is sufficient reason for their recusal. (Of note, on October 3, 2020, one week after Judge Barrett’s nomination, Pope Francis issued “Fratelli tutti,” a new encyclical ratifying the position of the Catholic Church against the death penalty and urging that “all Catholics should work for its abolition.”)

This article became a subject of controversy during her 2017 nomination hearing. In response to the issues raised, Judge Barrett said, “I cannot think of any cases or category of cases, including capital cases, in which I would feel obliged to recuse on grounds of conscience.” Judge Barrett clarified that she would not be willing to enter an order of execution if she were a trial judge, but she would be willing to affirm a death sentence at the appellate level. As a Supreme Court Justice, Judge Barrett would be in a position similar to that of a trial judge signing an execution order; Supreme Court justices are typically the last word on whether or not an execution is permitted to proceed. On Wednesday, September 30, 2020, the Senate Judiciary Committee released a 65-page questionnaire that Judge Barret had completed following her nomination. In it, Judge Barrett wrote a list of reasons she would recuse herself from a case, none of which were related to capital punishment.

Judge Barrett’s time on the Seventh Circuit seems to support her contention that she would not feel conflicted ruling in capital cases, as Judge Barrett has already voted to allow executions to proceed. In July 2020, she voted with a majority of the Seventh Circuit to allow the execution of Daniel Lewis Lee, the first person to be executed by the federal government since 2003. In spite of her earlier writing on the subject, it is therefore likely that, if appointed, Judge Barrett will vote on capital cases in alignment with the Court’s conservative majority.

Read SCOTUS Blog's comprehensive review of Amy Coney Barrett's judicial opinions and the nomination process. 

This blog post will be updated if any of the questions or exchanges during the Confirmation Hearings currently underway relate to the topics discussed here.