For three years, I have dreaded writing this piece. Conservatives have been planning for this day since at least 2017. And they know Democrats are not prepared for what comes next.
CNN and other news outlets are reporting that Donald Trump is planning to nominate Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court. Barrett is a law professor at the University of Notre Dame and has sat on the US Court of Appeals for the Seventh Circuit since Trump nominated her to that position in 2017. She is a star in conservative legal circles, and she is only 48 years old. Should Senate majority leader Mitch McConnell succeed in ramming through her appointment—an appointment made, no less, in the midst of the 2020 election—she could serve on the Supreme Court into the 2060s.
Barrett’s elevation to this position has been a long time coming. Her nomination has been made with one issue in mind: abortion. The conservative men who have been attacking a woman’s right to choose for a generation have long pined for a woman to do the final work of denying women their right to their own bodies. They’ve said so: Ramesh Ponnuru, longtime editor at National Review and fellow at the conservative American Enterprise Institute, has written: “The main reason I favor Barrett, though, is the obvious one: She’s a woman…. If Roe v. Wade is ever overturned—as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution—it would be better if it were not done by only male justices, with every female justice in dissent.”
Barrett will not disappoint conservatives when it comes to abortion. While other jurists hoping to sit on the Supreme Court have at least attempted to be coy with their opposition to Roe v. Wade, Barrett has not. She has said that abortion is “always immoral.” She has said that Roe creates a framework of “abortion on demand” (a patently false claim given that Roe explicitly created a fetal viability standard after which the state was allowed to limit women’s fundamental rights). Barrett has put herself on the record against abortion rights generally, and Roe specifically, more than any person I can think of nominated for the Supreme Court after that 1973 decision.
Over the next few weeks, Barrett and her moderate Republican defenders will likely try to tell people that she’s been lying all this time. They’ll try to tell us that she hasn’t already made up her mind about abortion, that she respects 50 years of Supreme Court precedent, that she’s not being elevated to the Supreme Court just because she’s a woman who happens to hate a woman’s right to choose.
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But no matter how hard Barrett tries to obfuscate her position in the coming days, hard-right conservatives know that her elevation to the court is a reliable vote against women’s rights. Why are they so sure about her legal views? Because Barrett herself has argued that she cannot and, more important, should not enforce secular laws that go against her religious beliefs.
If you read one thing about how Amy Coney Barrett’s religion would affect her ability to serve as a Supreme Court justice, read her own words. She addressed that matter in an article for the Marquette Law Review titled: “Catholic Judges in Capital Cases.” There, Barrett argued that Catholic judges should recuse themselves from cases that involve the death penalty. She argued that the Catholic Church’s moral stance against the death penalty might make it impossible for Catholic judges to dispense the impartial justice citizens are entitled to. Here’s part of the abstract for the whole long article:
Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense. Therefore, the authors argue, we need to know whether judges are legally disqualified from hearing cases that their consciences would let them decide. While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.
This article is, frankly, a refreshing dose of truth of the sort most aspiring Supreme Court justices assiduously avoid. Barrett is straight-up explaining that her own religious biases may prevent her, or a judge like her, from upholding secular law. It is rare to find a would-be justice who is willing to admit that their personal convictions shape how they see the law, because they get trashed by the opposition party for such admissions, even though we all know that a judge’s personal beliefs and lived experiences must impact how they apply the law.
I don’t find this article disqualifying. I’m Catholic myself (“raised Catholic,” I think, is the official term for somebody like me who is pretty sure God doesn’t exist but baptizes their kids to hedge that bet). I would love to live in a world where judges were honest and self-aware about their own bigotries and recused themselves accordingly.
What’s disqualifying is not Barrett’s religious beliefs; it’s her extremist beliefs—beliefs that would often seem to conflict with the moral teachings of almost any religion.
You can see Barrett’s moral hypocrisy all throughout her judicial opinions. No modern church favors deliberate indifference to human life. Amy Coney Barrett does. In 2019, she dissented from a Seventh Circuit opinion that found that the Eighth Amendment’s prohibition against cruel and unusual punishment protected people in prison from correctional officers’ firing “warning shots” into a cafeteria. Barrett callously wrote:,“The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance.… In the context of prison discipline, however, ‘deliberate indifference’ is not enough.”
Moreover, there’s no “Catholic” right to bear arms. If you believe the stories, Jesus famously told his followers to put down their weapons. But Barrett finds no conflict between that teaching and an expansive view of gun rights. She dissented from a 2019 case where the majority ruled that Wisconsin could disarm felons. Barrett found that “virtue-based restrictions” could not be applied to gun rights.
In 2020, again in dissent, Barrett was the lone voice in favor of the Trump administration’s policy of denying entry to immigrants who may in the future require public assistance. She alone thought it was lawful for the Trump administration to apply the “public charge” rule to deny green cards to such people. I am reminded of Jesus’s famous sermon where he says, “Thou shalt turn away any neighbor who may solicit an EBT card to pay for her bread.”
That is Barrett’s record. Her religion is not the source of that record; it is the shield she uses to blind people to the political extremism it contains.
Nobody should care that Barrett is Catholic, or “very” Catholic, or “super” Catholic. But people should absolutely care that the woman has herself said that she might and should recuse herself from cases involving one conflict between the laws and her church but hasn’t recused herself from cases involving others—and seems unlikely to once she gets to the Supreme Court.
Barrett will not recuse herself from cases involving abortion. In fact, on the Seventh Circuit, she has sought to impose herself on abortion decisions that weren’t even on her desk. In 2018, a three-judge panel she was not on invalidated an Indiana law requiring that fetal remains be buried or cremated. Barrett voted to reconsider the ruling in front of the full circuit. Her side lost, but the Supreme Court eventually reinstated the law. In 2019, another Indiana law required girls under the age of 18 to receive consent from a parent before getting an abortion, including girls who had already received a court order allowing them to have one. Again, Barrett was not on the three-judge panel which invalidated the law, but again she voted to have the case reviewed before the full circuit.
These are not the actions of a person trying to keep their personal beliefs out of an abortion debate. Quite the opposite: Barrett has been trying to get her hands on an abortion case since she got on the circuit.
What this means is that Barrett is unwilling to impose her theocratic views to save a man’s life, but she is very likely willing to take dominion over a woman’s body for nine months, forcing them to bring an unwanted pregnancy to term. She’ll put herself between a woman and her doctor but won’t stand in front of an executioner and a defenseless prisoner. That incongruity doesn’t sound like the devout position of a religious adherent; it sounds like some bullshit dreamed up by Federalist Society hypocrites more concerned with using that law to control women than with serving God.
If Barrett ruled like a devout Catholic all the time, that would be one thing. But she doesn’t. She rules like an extremist conservative all the time, and just uses religion to justify those extremist positions when it is convenient for her to do so. She ignores the moral and ethical underpinnings of her faith when they conflict with the cruel requirements of conservative dogma.