Judge Amy Coney Barrett’s nomination to the Supreme Court has made her devout Catholic faith a matter of public debate. While some of that debate has bordered on anti-Catholic bigotry, other commentary suggests that citizens simply want to know whether Barrett’s faith would influence her decisions as a justice. I see no reason to think that it would.
Let me start with my own experience as a person of faith who served on the U.S. Court of Appeals for the D.C. Circuit for 15 years. During those years, I gave dozens of talks at law schools, colleges and universities. The biographical introduction that typically preceded my remarks unavoidably announced my religious commitments. Before becoming a judge, I had been the general counsel of a prominent religious university, published on religious themes and even taught courses in Scriptural studies and theology.
So I was never surprised when a student asked what role my faith played in my decisions as a judge. My answer was intended to startle: “None.”
My primary commitment in deciding a case was not to my faith, but to the oath mandated by the Constitution. That oath commits a judge to follow the Constitution and U.S. law, not his or her personal conscience. And God, in my judgment, wouldn’t have it any other way.
Since the first act of the first Congress, all federal judges have had to take an oath to support “the Constitution and laws of the United States … so help me God.” This is a solemn promise, with God as a witness, that when acting as a judge you will be a different person than when you are not acting as a judge; that you will resist the temptation to displace the law with your own wishes about who should prevail in court and why.
To a person of faith, this oath is more than a promise of impartiality to one’s fellow citizens – it is also a promise to God that while wearing the robe a religious judge will not do the one thing secular critics most fear: reach for outcomes based on her religious worldview.
Take abortion. I am pro-life, a view that is informed by my faith. But in my role as a judge, I was bound by an oath to God – the same God I believe is pained by widespread elective abortions – to never allow my private, faith-informed views on the issue to influence my approach to the matter on the bench. I promised God that I would follow the law.
When I was acting as judge, the question was not what Scripture, revelation or “dogma” say about abortion. The question was what the Constitution says.
It takes no guesswork to determine whether Barrett will approach her work in this way. She has already said that she will. In her 2017 confirmation hearings, she said (under oath!) that a judge should “never” impose her “personal convictions, whether they derive from faith or anywhere else, on the law.” She said so again in a May 2019 speech to Hillsdale College: “A judge is obligated to apply the law as it is, and not as she wishes it would be.” And she said so again in an October 2019 lecture at Princeton University: “A judge’s view about the constitutionality of the Affordable Care Act should not turn on whether he or she thinks the act is good or bad policy.”
And her decisions on the bench bear out that promise. Consider her 2019 vote in Price v. City of Chicago, in which pro-life sidewalk counselors challenged an ordinance that barred them from approaching women near abortion clinics for the purpose of leafletting, protesting or counseling. The ordinance arguably violated the First Amendment, especially under the principles underlying several recent decisions of the Supreme Court, and a willful judge might have seized on those decisions to side with the pro-lifers. But Barrett joined an opinion upholding the ordinance. The opinion explained that a similar regulation had been upheld by the Supreme Court in Hill v. Colorado – a 2000 precedent that remained “binding.” By casting an impartial vote to adhere to the law, Barrett honored her oath. And she displayed the same impartial approach in other rulings, such as Lee v. Watson and Peterson v. Barr, which allowed the first federal execution in 17 years to proceed regardless of her personal views on the death penalty.
Some have expressed concern about counsel Barrett gave to graduating law students at Notre Dame in 2006 that they should work to build the Kingdom of God. Her critics see in that exhortation some sort of direction to use the law as a sectarian tool. But this is a gross misreading of her speech, the point of which was to advise young lawyers to be careful not to let their careers define their lives, but to find a deeper purpose than the headlong pursuit of position.
Although Supreme Court justices have more leeway to revise precedent than judges on the courts of appeals do, justices are still prohibited from allowing personal preferences or religious beliefs to determine whether and when they follow that precedent. There is no reason to think a Justice Barrett would violate that rule.
In other words, when wearing the robe, there is no conflict between following God and following Caesar. It’s Caesar all the way down.
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