ArcaMax

WASHINGTON -- No Supreme Court nominee is a completely safe bet. No one -- not even the nominee himself or herself -- knows for certain how he or she would rule on a particular case until the moment arises.

And yet: Of all the potential Supreme Court nominees that President Trump is considering, the one who seems most inclined to undo Justice Anthony M. Kennedy's work and overturn Roe v. Wade as completely and quickly as possible is Amy Coney Barrett, a 46-year-old newly minted (last November) federal appeals court judge.

Maybe any of those on Trump's Federalist Society-vetted list would leap at the chance to dump Roe, or at least to interpret the current standard -- limits on abortion are permissible if they do not constitute an undue burden -- in a way that would drain it of real meaning.

But there remains a big difference between outright overruling and cramped interpretation. And while Barrett has the shortest judicial paper trail of the likely nominees, her academic writings are the equivalent of a flashing neon sign: I'll do it.

This outcome can be predicted from two strands of Barrett's writings. The first is her 1998 article with John H. Garvey, "Catholic Judges in Capital Cases," discussing the ethical obligations faced by judges who are observant Catholics and who are called on to handle death-penalty cases. What comes through in Barrett's discussion is her thoughtfulness, deep commitment to her faith -- and moral opposition to abortion.

The article asks how judges, "obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty" should balance that against the duty "to adhere to their church's teaching on moral matters." Barrett and Garvey ultimately conclude that "if one cannot in conscience affirm a death sentence the proper response is to recuse oneself."

Repeatedly, however, they distinguish between capital punishment and abortion or euthanasia. "Criminals deserve punishment for their crimes; aged and unborn victims are innocent," they write.

And in endorsing judicial recusal, they cite a law review article urging the same result for an anti-abortion judge who is compelled by precedent -- and the status of being a lower-court judge -- to uphold that right.

"The abortion case is a bit easier, we think," they write. "Both the state and the unborn child's mother are (at least typically) acting with gross unfairness to the unborn child, whereas the moral objection to capital punishment is not that it is unfair to the offender."

OK, but does that mean Barrett would overturn Roe? Here is where the second strand comes in: a series of law review articles in which Barrett outlines her view that the Supreme Court should not be so tightly bound by the doctrine of adhering to precedent -- stare decisis -- especially on matters of constitutional law.

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