Amy Coney Barrett’s nomination to the Supreme Court of the United States poses a difficult question: does her faith commitment as a Roman Catholic preclude an interpretation of the law that is responsive to concerns of the working class?
The Roman Catholic church has a long history of social teaching, dating back to Pope Leo XIII’s 1891 encyclical Rerum Novarum. A response to industrialization and the new demands on workers, it offered qualified support of workers and trade unions. The emphasis on human dignity, the rights of workers, the common good and solidarity has been an enduring tradition in subsequent papal, conciliar and episcopal documents. One might reasonably assume that some of the teachings of this tradition would find their way into Barrett’s decisions.
So far, her record is not promising. The Alliance for Justice recently assembled a briefing document arguing the working class will have nothing to gain from Barrett’s time on the Supreme Court. In fact, we have already lost key decisions in her time on the Seventh Circuit Court of Appeals. For instance, in Wallace v. Grubhub Holdings, Inc., the court considered the claim that Grubhub drivers were owed overtime pay according to the Fair Labor Standards Act. Grubhub argued that workers had already given up the right to make such a claim by signing a Delivery Service Provider Agreement requiring arbitration for any claims related to their work. The drivers countered that they were exempt from arbitration that the Federal Arbitration Act (FAA) would require because they were engaged in interstate commerce. Other circuit courts had ruled that workers were exempt from arbitration if they worked for a company that itself engaged in activity in more than one state, but Barrett ruled that Grubhub workers were not entitled to overtime pay because they did not themselves cross state lines. Shannon Liss-Riordan, the attorney for the Grubhub drivers, noted that when the FAA was enacted in 1925, Congress “never foresaw that it would be used to stop drivers for a major national delivery company from challenging their employer’s systemic violation of wage laws.”
Michael Duff, University of Wyoming law professor, called Barrett’s decision in Wallace v. Grubhub “long on ‘textualism’ but short on consideration of the implications of applying text mindlessly.” Barrett’s opinion, Duff added, ignored the likelihood that “by 2024 more than 80 percent of private-sector, nonunion workers may be covered by forced arbitration clauses.” Barrett isn’t swayed by such criticism, as she made clear last year in a speech at Case Western Reserve University School of Law. Judges should not focus on current conditions but on what the law says. Referring to Scalia with approval, she argues that “textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint.” Scalia’s opponents (and presumably Barrett’s) — the “purposivists” — do not see that hard constraint. As Scalia explained, “It is the law that governs, not the intent of the lawgiver. . . . Men may intend what they will; but it is only the laws that they enact which bind us.” As originalists, Scalia and Barrett are determined to interpret the Constitutional text according to the meaning of the words at the time of its composition.
Considerations of textualism and originalism bring the case for or against Barrett back to religion and workers’ rights, because they suggest that her understanding of the law has little or no relation to the social teachings of the Catholic Church. Perhaps that supports her statement in the 2017 U.S. Senate hearing that her faith would not affect her decisions as an appellate judge. On the other hand, in a 2006 commencement address at Notre Dame Law School, she explicitly reminded listeners of the social justice commitments of a Catholic law school. A legal career, she said, “is but a means to an end, and… that end is building the kingdom of God.” She called on graduates to become “a different kind of lawyer,” one whose fundamental purpose in life is not “to be a lawyer, but to know, love, and serve God.”
So it is worth considering how Barrett lives her faith, including her affiliation with the People of Praise Christian Community. Founded in 1971 and originally based in South Bend, Indiana, home as well to Notre Dame University, the group is part of the charismatic renewal movement in Roman Catholicism that arose in the late 1960s. Today, it has 1,700 members in 22 cities across the United States and Canada, as well as one location in Jamaica. Led by lay people, People of Praise describes itself as a “charismatic Christian community” that, like others in the Pentecostal movement, includes members who “have experienced the blessing of baptism in the Holy Spirit and the charismatic gifts” such as speaking in tongues and healing ministries. People of Praise is not based in churches but in the community life that members forge among themselves. Hearkening back to the first Christians, People of Praise adherents make covenant commitments among themselves “grounded in a lifelong promise of love and service to fellow community members.” A period of discernment that lasts several years is necessary before one’s membership can be established in the community. Small groups meet for prayer and the reading of Scripture. They cement their ties by sharing meals and attending at each other’s baptisms, weddings and funerals, and they extend financial and material support to each.
The People of Praise Christian Community’s approach to faith has much in common with the originalism Barrett learned from Scalia. While Roman Catholicism generally considers scripture within the context of its tradition and the teaching authority of the church, conservative Protestants such as the Pentecostal and charismatic believers in the evangelical fold go “back to the Bible” and puzzle over its God-inspired truths. The People of Praise Christian Community, while historically Roman Catholic, incorporates this quest for the original meaning of scripture that, they argue, God intends believers to follow in the present day. An account of how Barrett found her way into both the People of Praise Christian Community and the Supreme Court as Scalia’s clerk would be fascinating, and it might show how the orientation to text and original meaning in both places will remain mutually reinforcing for Barrett.
Liberal-leaning Christians point out that times change and the interpretation of the Bible and applications of its teachings need to be attentive to new contexts. Those who support working-class interests make the same argument, suggesting that new challenges posed by technology and ever-increasing capital accumulation and monopoly power call for updated application of old laws. Barrett’s mentorship under Justice Scalia and her record on the Seventh Circuit do not appear to allow for this possibility. In other words, the issue is not her Roman Catholic faith in some general sense. Her affiliation with a religious community that is anchored firmly in the past makes clear that her rulings will not be friendly to workers and their families.
Ken Estey, Brooklyn College