In a recent article of mine, Private Versus Public Morality, published on the Catholic Insight website, I discussed the potential impact of the newly appointed United States Supreme Court Judge, Amy Coney Barrett, a Roman Catholic. One of the points discussed was whether Judge Barrett, because of her religion, would recuse herself from a case involving abortion.
Just today, December 1, 2021, a major case was argued before the court. The state of Mississippi passed a law prohibiting abortion after 15 weeks of gestation. At the present time, abortion at any stage of gestation is legal in the United States. Unfortunately, it is well known that even infanticide is commonly performed. The Supreme Court must decide if such a restriction can be placed on what is now abortion at any time on demand.
On this same day a major political organization published on article online. The article refers to a situation discussed in my original article.[1]
As a co-author of a 1998 law review article addressing the topic of Catholic judges hearing capital punishment cases, which the state permits but the church forbids, Judge Barrett maintains that Catholic judges must or should recuse themselves.
When should a Supreme Court Justice’s deeply held religious beliefs require recusal — that is, that the justice not participate in a particular case? A difficult question, to be sure, but one that Justice Amy Coney Barrett has already answered for herself. And her answer requires her recusal in abortion cases.
The Supreme Court hears arguments in Dobbs v. Jackson Women’s Health Organization on Wednesday (December 1, 2021), which challenges the constitutionality of Mississippi’s ban on abortions after 15 weeks of pregnancy.
Under current precedent, the law is unconstitutional — as both the district court and the court of appeals held. Both Roe v. Wade, decided in 1973, and Planned Parenthood of Southeast Pennsylvania v. Casey, decided in 1992, hold that a state cannot ban abortions prior to viability, approximately the 24th week of pregnancy. Mississippi has asked the Supreme Court to overrule those precedents.
To follow her own words in a 1998 law review article, Barrett should have recused herself from deciding this case (and all other abortion cases) if she has any integrity at all.
In Catholic Judges in Capital Cases, published in the Marquette Law Review,[2] Barrett (then a law clerk to a federal court of appeals judge) and her co-author address the dilemma that faces devout Catholic judges in capital cases. She writes that such judges are “obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty,” but they are also “obliged to adhere to their church’s teaching on moral matters.” They are therefore “morally precluded from enforcing the death penalty.”
What’s a Catholic judge to do, then? According to Barrett’s article, the judge must recuse herself. She can neither enforce the death penalty and violate her religious conscience, nor fail to enforce it and violate her oath of office.
And even in a case in which a judge has discretion whether or not to sentence a convicted criminal to death, he cannot resolve to keep an open mind and then claim to have done nothing wrong if he decides not to impose the death penalty. Because, Barrett writes, “A judge who suspends his moral judgment during sentencing sets his conscience aside” and “cuts himself loose from his moral moorings.” That unloosing is itself a sin, she concludes — analogous to “looking lustfully at a woman” and thus committing adultery “in his thoughts.”
Barrett’s bottom line is that an “observant Catholic judge” may not “formally cooperate in bringing about the defendant’s execution.” And for that reason, “if one cannot in conscience affirm a death sentence the proper response would be to recuse oneself.” To do otherwise is to “betray a public trust” by manipulating the law “in order to save lives.”
What does all this have to do with abortion? Barrett tells us in the same article that in the context of abortion the case for a Catholic judge’s recusal is even stronger. Unlike the death penalty, the Catholic church’s “prohibitions against abortion and euthanasia are absolute.” And also, unlike the death penalty, “abortion and euthanasia take away innocent life.” Abortion, she says, “is always immoral.”
Barrett’s conscience, and her fidelity to the teachings of her church, thus do not allow her to affirm a woman’s right to end her pregnancy, as that would be “formally cooperating” in an absolutely immoral act. But neither may she “betray the public trust” by manipulating constitutional law and precedent “in order to save (unborn) lives.” Nor may she suspend her moral conscience while she decides Dobbs, even if she were able to do so — for that, too, would violate her religious beliefs.
It does not matter that, as a Supreme Court justice, she is entitled to vote to overrule even longstanding precedents like Roe. Even Supreme Court justices are bound by the rule of law. They may not ignore or overrule precedents based solely on their own moral compass. They must instead make their decisions in the context of two centuries of doctrine about the value of precedents, the need to justify any overruling, and the methods of constitutional interpretation generally. And if Barrett relies instead on her “church’s teachings on moral matters,” she is manipulating the law no less than if a judge morally opposed to the death penalty finds a way to avoid imposing it in a particular case.
On Barrett’s own reasoning, then, her only option is to recuse herself. If she does not do so, she is, in her own words, violating her oath of office and betraying the public trust.[3]
One can only assume that until the summer, when the Supreme Court publishes its decisions, there will continue to be a daily onslaught of commentary on Catholic judges in general, and Judge Barrett in particular, regarding their inability to render fair decisions based on their religious beliefs.
Perhaps it is naïve to believe that a judge with strongly held religious beliefs cannot render a fair decision in a secular world. However, there is a long-standing belief that moral laws are derived from God. Perhaps the problem lies in secular laws that have no relation to moral principles. It seems wrong that a judge with strongly held moral beliefs should not be able to form fair judgments. That is a discussion for another time.
Editor’s comment: I have deep reservations with such fundamental issues being decided by nine black-robed Justices, a secular Magisterium with no divine authority. But if this is the route America has taken, we should recall that six of the nine Justices are Catholic, so, according to the unsound principle enunciated in the long quotation from the Law Review article provided by Dr. Lozano, they would all have to ‘recuse themselves’. Or is only Justice Barrett ‘Catholic’ enough? What of Kavanaugh and Alito? They will all have to face God with what decision they reach. For abortion is not a specifically Catholic issue, but a matter of natural law, which binds all of us. What of Justices who hold ‘strongly held’ opinions on other issues, race, ‘gender’, equity, ecology, justice – should any Justice with inviolable principles recuse themselves, and will all court cases now be decided by moral jellyfish at the whim of whatever cultural currents, those whom Saint Jude describes as waterless clouds, carried along by winds; fruitless trees in late autumn, twice dead, uprooted?
As Saint Thomas says, human law is either rooted in inviolable moral principles – that is, the natural and the divine law – or it is no law at all, but rather a type of violence. And that violence must end.
[1] Catholic Insight. 2021. “Private Versus Public Morality.” Accessed December 1, 2021. https://catholicinsight.com/private-versus-public-morality/
[2] Barrett, Amy C. and Garvey, John H. 1998. “Catholic Judges in Capital Cases.” Marq. L. Rev. 81(303) 303-350.
[3] The Hill. 2021. “Justice Amy Coney Barrett’s own words require her to recuse herself in abortion cases.” Accessed December 1, 2021. https://thehill.com/opinion/judiciary/583742-justice-amy-coney-barretts-own-words-require-her-to-recuse-herself-in