President Trump’s plan to nominate Judge Amy Coney Barrett on Saturday to replace Ruth Bader Ginsburg on the Supreme Court is a shocking political spectacle. The formal announcement Saturday will come the day after Ginsburg became the first woman and the first Jew to lie in state at the Capitol, and less than 40 days before the presidential election.
In 2016, Republicans refused to consider President Obama’s nominee for the Supreme Court, Judge Merrick Garland, 260 days before that year’s election.
The nomination is also a remarkable achievement for the religious right. In less than four years, Trump will have selected three of the court’s nine justices (and notably, the three youngest justices, who are likely to have the longest terms on the bench), all of whom are religious conservatives affiliated with (or chosen by) the right-wing Federalist Society.
Like Judge Garland, who was denied even a hearing, Judge Barrett is unquestionably qualified. She has written numerous scholarly articles on a wide variety of legal and philosophical issues, and unlike some recent Trump nominees, appears to have a spotless ethical record.
But Barrett is also an arch-conservative who has espoused troubling views about the intersection of her personal beliefs with her role as a judge, and who will fundamentally alter the American legal landscape on a number of issues.
Obviously, abortion is the highest-profile of these, and it’s easy to see why every major anti-abortion organization in America hailed Barrett when she was appointed to the Seventh Circuit. She has criticized Roe v. Wade as “judicial fiat” and an “erroneous decision.”
And at a Notre Dame Law School event 2013, she asked, rhetorically, “Would it be better to have this battle in the state legislatures and Congress rather than the Supreme Court?”
That, of course, is intrinsically an anti-choice position. We don’t ask whether it would be better or worse for a state to violate constitutional rights–for Mississippi to outlaw Islam, for example, or Vermont to ban the Republican party. If a constitutional right is at issue–as the Supreme Court held in Roe–then the whole point of judicial review is that it doesn’t matter if it would be “better” for legislatures to fight it out.
Barrett made a similar argument regarding same-sex marriage. In a 2016 lecture she agreed with the dissenters in Obergefell v. Hodges, the case that invalidated same-sex marriage bans, saying that while legislatures could grant same-sex marriage rights, it wasn’t for the courts to decide. “It’s really a who decides question,” Barrett said.
Once again, to say it’s a “who decides” question is to conclude that there is no constitutional right at issue.
Likewise on other issues, in which Judge Barrett has, without a single exception I could find, taken the right-wing point of view: Obamacare (“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning”), immigration, guns, and others.
Finally, as has been widely reported, Barrett is a devout religious conservative. She is a member of a charismatic Catholic group called “People of Praise,” which has some unusual practices and teaches extremely conservative social teachings about men and women.
On its own, none of that matters since Barrett’s religious beliefs should have no bearing on her fitness as a Supreme Court justice.
However, Barrett has made several troubling statements regarding how religious belief impacts the roles of lawyers and judges. Most famously, she said in 2006 that a legal career should be “a means to an end,” namely “building the Kingdom of God.” Now, despite much liberal hand-wringing over this comment, it, alone, is not so problematic. It may simply mean to build a more just and equitable world, as the Bible requires. Indeed, Justice Ginsburg herself had Biblical injunctions to pursue justice on her chamber walls.
But when Barrett's "means to an end" statement is placed in the context of other statements she has made, it raises questions. For example, in her first law review article, published in 1998, Barrett wrote that “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty.”
That is an unusual position, suggesting that a judge cannot discharge her public duty if she has a personal religious belief regarding it. Ironically, if that principle is applied to all cases in which the Catholic Church has stated moral positions, it might require Justice Barrett to recuse herself from cases regarding abortion and homosexuality, as well as the death penalty.
At her Seventh Circuit confirmation hearing, Barrett said that she did not believe it was “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law.” But that seems at odds from her stated position on recusal – unless “personal opinions” do not include moral obligations derived from religious faith.
These are not mere philosophical questions, and should Democrats choose to participate in this charade of a confirmation process, they should be probed in detail – hopefully with more subtlety than Senator Diane Feinstein’s statement to Barrett during her last confirmation hearing that “the dogma lives loudly within you,” which spectacularly backfired and became the best PR that Barrett could have received.
Rather than question Barrett’s faith, Democrats must focus on her statements about how it influences her judging.
To take one example, in a few weeks, the eight-justice Supreme Court will hear a case about whether taxpayer-funded adoption and foster care agencies can discriminate against people if the organization is motivated by a religious belief.
Based on rulings in other cases, Justices Alito, Gorsuch, Thomas, and Kavanaugh are sure bets to allow this discrimination in the name of “religious freedom.” Justice Roberts’ position is harder to predict. Justice Ginsburg would likely have sided with the victims of discrimination rather than the religious organization doing the discriminating.
What about a Justice Barrett?
Based on Barrett’s statements about religion, her record as a judge, and her endorsements from every major right-wing organization, it seems certain that she would side with the court’s conservatives, allowing adoption and foster care agencies to turn away gays, Muslims, or any other group of people they felt religiously compelled not to serve.
Multiply that by thousands of similar cases across the federal and state courts: religious exemptions for businesses turning away gay or trans people, further limitations on the equality of same-sex marriage, more restrictions on abortion providers and women who get abortions, religious exemptions to employment discrimination laws, funding of religious schools, and countless other issues.
These, along with abortion and LGBTQ equality, are some of the specific issues Democrats must raise, if they are to dignify this process by participating in it.
There is no question that Judge Barrett is qualified to sit on the Supreme Court. But once she does so—since her confirmation seems all but assured —she will change it forever.