Judge Barrett, Recusal, and Capital Cases

The nomination of Seventh Circuit Judge Amy Coney Barrett to the Supreme Court has focused new attention on a 1998 law review article she co-authored with John Garvey, Catholic Judges in Capital Cases. This article is unlikely to be a roadblock to her confirmation, but it does raise a question that needs to be answered.

Right out of the gate, we should note what Professor Garvey, the senior author of the article, wrote in the WaPo last week. “It would hardly be reasonable to hold Barrett responsible for everything we said back then, when she was still a law student and the junior partner in the endeavor.” Quite right. Even as an indication of her views at the time, the junior partner does not typically decide the positions that will be taken. Further, one’s views on issues may change with time and experience. That was 22 years ago, and a lot of water has passed under her bridge since then.

On the subject of capital punishment particularly, I have occasionally witnessed a change in viewpoint of law students and recent graduates who have come to work as interns at CJLF. Coming from an academic environment where crime is sanitized and Politically Correct dogma distorts discussion, some are skittish about the subject. After being assigned to work on cases where they learn the real, unfiltered facts of what these monsters have actually done, the discomfort vanished in short order.

Back in 1998, the article co-authored by law student Amy Coney said, in a nutshell, that church teaching would preclude a Catholic judge from making a discretionary decision to sentence a murderer to death in the trial court but would not preclude deciding on appeal whether the trial court committed reversible error. A judge who could not follow the law would have to recuse. Allowing one’s religious beliefs to affect the decision of a case is not an option.

At her confirmation hearing for the Seventh Circuit almost two decades later, Professor Amy Coney Barrett said, in response to the first question from Chairman Grassley, that she did not necessarily endorse everything in the article, but she did emphatically endorse what she considered the core proposition. That is, “it is never, ever permissible for [a] judge to follow their personal convictions in the decision of a case rather than what the law requires.” [00:51:42] On a follow-up question about recusal, she said, “What I can tell you is that sitting here today, I cannot think of a case or category of cases on which I would feel obliged to recuse on grounds of conscience.” [00:52:33]

In response to a written “question for the record” from Senator Feinstein, Professor Barrett responded:

As I said at my confirmation hearing, 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 if confirmed as a judge on the Seventh Circuit. As I also stated at my confirmation hearing, I participated in capital cases as a law clerk to Justice Scalia, including in the common circumstance where the law afforded no relief from the sentence.

Judge Barrett has served three years on the Seventh Circuit since then. The Seventh Circuit does not have a large capital caseload. There are only three states in the circuit. Two of them, Wisconsin and Illinois, have not had capital punishment during this period. Indiana does not have a large death row, only 10 murderers at end-of-year 2018, according to the latest BJS report.

Indiana does house the federal government’s death row, however. That makes Indiana the venue when a federal death row inmate files an actual habeas corpus petition under 28 U.S.C. §2241, as distinguished from the habeas-substitute motion to vacate under §2255, which must be filed in the original trial court. Indiana is also an available, though not exclusive, venue for civil cases challenging federal executions. Judge Barrett was on the panel, along with Chief Judge Sykes and Judge Easterbrook, for the flurry of cases late last year and this summer in which an array of murderers tried to stop the resumption of federal executions.

The Seventh Circuit several times cleared the way for executions by denying a stay itself or vacating a stay issued by the district court. Judge Barrett participated in these cases. Consistent with her confirmation testimony, she evidently did not feel “obliged to recuse on grounds of conscience.”

What is different now that Judge Barrett is nominated to move up to the Supreme Court? First, the recusal of a Supreme Court Justice is a much bigger deal than the recusal of a district or circuit judge. If one of the latter recuses, in most cases all that happens is that another judge is drawn to fill the spot. That might be another judge of the same court or a judge from another court sitting by assignment. In the Supreme Court, there are no assignments. If a justice recuses and the remaining justices split 4-4, the Supreme Court fails to settle the question of law that it took the case to settle. Whichever party won in the lower court still wins, but if there was a split of authority among circuits or states it remains split. Resolving those splits and providing a uniform precedent for important questions is the primary reason we have a Supreme Court in the first place, and failure to resolve them is a failure of the Court as an institution.

Second, capital cases are a bigger part of the caseload in the Supreme Court. There are capital cases decided every term, sometimes more than one, and they are among the most contentious cases decided. Further, the issues decided are not limited to “death is different” rules but have impacts in noncapital criminal cases, habeas corpus, and juvenile cases as well.

But would Judge Barrett have any more reason to recuse as a Supreme Court Justice than she did as a circuit judge in the recent cases? Probably not. Unlike some state supreme courts, the U.S. Supreme Court does not reweigh the aggravating and mitigating circumstances and make an independent judgment as to whether the balance warrants a death sentence. See McKinney v. Arizona, decided in February, for an example of a case where the state supreme court independently reweighed.

The U.S. Supreme Court’s role is largely limited to deciding if a lower court’s decision contains a reversible error. The closest the high court gets to a sentencing judgment is deciding whether a sentencing-phase error, once found, amounts to a “harmless error” that would not have changed the result.

From Judge Barrett’s article, testimony, and participation in the Seventh Circuit, I do not think she will feel a need to recuse in the kinds of capital cases that come before the Supreme Court. But I would like to hear that from her directly in the confirmation hearing.