January 26, 2021

Justice Ruth Bader Ginsburg Passes, Justice Amy Coney Barrett Seated as Replacement

With Judge Amy Coney Barrett replacing   Justice Ruther Bader Ginsburg on the Supreme Court, there will be a significant ideological shift.

With Judge Amy Coney Barrett replacing Justice Ruther Bader Ginsburg on the Supreme Court, there will be a significant ideological shift.

Nancy Pelosi, Public domain, via Wikimedia Commons

2020 marked a significant change on the U.S. Supreme Court, with former Seventh Circuit Judge Amy Coney Barrett filling the vacancy left by the September 18 death of Justice Ruth Bader Ginsburg. Legal commentators noted that Justice Barrett’s October 26 confirmation—the U.S. Senate vote split along party lines—is likely to shift the Court further to the ideological right.

Justice Ginsburg had been on the Supreme Court since 1993, confirmed by a near-unanimous Senate following her appointment by President Bill Clinton. In her decisions in death penalty cases, she took a measured and deliberate approach that prioritized the Court’s precedent and procedural fairness. In the 20 years before her death, she voted with the majority in every 5-4 decision in favor of capital defendants and death row prisoners. And in the last several years of her life, she more openly expressed her personal opposition to the death penalty both on and off the bench.

Justice Amy Coney Barrett was appointed to the Supreme Court on September 26, 2020, by President Donald Trump, who had launched Justice Barrett’s judicial career by appointing her to the U.S. Court of Appeals for the Seventh Circuit in 2017. Justice Barrett’s short time on the Seventh Circuit bench provides few clues about her likely death penalty jurisprudence going forward. In a law review article she co-authored in 1998, Justice Barrett—herself a devout Catholic—wrote that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty.” In her time on the Seventh Circuit, Justice Barrett had little exposure to capital cases, although she did vote to allow Daniel Lee’s execution to proceed in early 2020. In her first few months on the Supreme Court bench, she has also voted with the majority to deny certiorari review or a stay to each federal death row prisoner facing execution.

Even before Justice Barrett’s confirmation, the Supreme Court has been deeply divided on issues relating to capital punishment. Many of the recent court decisions involving capital punishment have been fractured, as evident from a review of the decisions issued in 2020, as well as decisions from the Court’s “shadow docket.”

See the Project Blog for more information on Justice Barrett and the death penalty.

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