What Did Professor Barrett Think About Smith?

Employment Division v. Smith was decided in 1990. Three years later, RFRA was enacted. Amy Coney began law school at Notre Dame in 1994. City of Boerne v. Flores was decided in 1997. In Flores, Justice Scalia offered a full-throated defense of his Smith opinion. In 1997, Coney also graduated from law school. In OT 1998, she clerked for Justice Scalia. In a 2008 article in the Notre Dame Law Review, Professor Barrett discussed Smith, RFRA, and Boerne.

In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the Free Exercise Clause did not bar the application of neutral, generally applicable laws to religious practices. See id. at 885. RFRA, which attempted to restore the pre-Smith understanding that state actors cannot burden the free exercise of religion in the absence of a compelling interest, was a “direct response” to this decision. See Boerne, 521 U.S. at 512. The Court held RFRA unconstitutional on the ground that Section 5 of the Fourteenth Amendment does not grant Congress the power to define what the Constitution requires, as opposed to the power to remedy violations of it. See id. at 519.

Amy Coney Barrett, Introduction, 83 Notre Dame L. Rev. 1147, 1172 (2008)

In 1991, during Judge Thomas’s confirmation hearing, Senator Patrick leahy asked Thomas if he ever “stated whether you felt that [Roe v. Wade] was properly decided or not?” Thomas replied that he did not “recollect[] commenting one way or the other” on Roe v. Wade during law school or in the two decades afterwards. I don’t think Barrett could have said the same thing if he was asked about Smith during her confirmation hearing. Barrett clearly thought about Smith. Still, as best as I can tell, Professor Barrett never publicly wrote whether she thought Smith was rightly decided or not. She wasn’t a Free Exercise Clause scholar, so that omission is not suprising.

This background brings me to Fulton v. City of Philadelphia (2021). In that case, there were three votes to overrule Smith. But Justice Barrett, joined by Justice Kavanaugh, declined to take that step. Justice Barrett raised a host of questions that might need to be answered were Smith to be overruled. I’ve yet to meet a single religious liberty litigator who actually thinks Barrett’s decision to not overrule Smith was due to those questions.

Rather, the far more likely scenario is that she thought Justice Scalia was right in 2021. She likely came to that conclusion in the 1990s as a student when Smith and Boerne was decided, or while serving as a law clerk for Justice Scalia in 1998, or while serving on the Notre Dame Law faculty. Again, to this day, Barrett’s close friend Professor Rick Garnett feels compelled to defend Smith even when there is no credible attack against it.

Now, onto Hunter v. United States. Justice Barrett favorably cited her law review articles to support her judicial belief that the Supreme Court lacks a supervisory power. It’s possible that Justice Barrett’s views on Smith were wiped away, tabula rasa, upon her confirmation. But I would wager, Justice Barrett’s views on Smith were set some time ago and aren’t going to change.