Presidents and Precedents …

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Jennifer E. Morel considers new Justice Amy Coney Barrett and issues of faith and fidelity in the US Supreme Court.

Scrolling through articles on the recent confirmation of Amy Coney Barrett to the US Supreme Court, this quote caught my eye: 

“It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people… The oath that I have solemnly taken tonight means, at its core, that I will do my job without any fear or favour, and that I will do so independently of both the political branches and of my own preferences.”

While these specific remarks were made by Justice Barrett at her swearing-in ceremony, they are the essence of her many interviews and hearings, beginning with her nomination to the Court of Appeals to the Seventh Circuit in 2017. As peoples committed to democracy, dedicated to the rule of law, and concerned for the direction of US culture and society, they demand our examination. 

Image courtesy of WikiMedia

The pigeonholing of public figures into political categories is common enough – even when that pigeonholing is more caricatural than honest. Take, for example, the two most recent Popes: Pope Francis and Pope Benedict XVI. 

Popular media labels one ‘liberal’ and the other ‘conservative’ although both are committed to the same fundamental ideas such as the holiness of marriage; the dignity and importance of all human life, from the moment of conception until natural death; the preservation and intelligent development of the earth, given as gift by God and so on. 

However, Pope Benedict XVI and Pope Francis get typecast as belonging to separate political categories, because we often have difficulties seeing that labels such as ‘liberal’ or ‘conservative’ cannot reflect the full breadth of the Catholic Church’s teaching.  

In light of Justice Barrett’s statement, it is important to ask whether we do the same with judges. Do we focus on their preferences as political, instead of their ability to truly interpret the law and to make that law clear in its implications? Do we similarly pigeonhole their beliefs, subjecting them to critical religious tests before and during their time in office? 

Examining Justice Barrett’s statement that “religious belief would not bear in the discharge of my duties as a judge,” should we subject her declarations to the same scrutiny?

Is it legitimate for a judge to prescind from his or her political preferences or, even more significantly, their deeply held religious beliefs, as they exercise their profession?

What does the Catholic faith of Justice Barrett say about the relationship of her religious convictions to her work as judge?

To answer, it is important to understand what the role of the judge in interpreting the law entails, and specifically, how Justice Barrett has delineated it in her own work. The Supreme Court “functions as guardian and interpreter of the Constitution…”, in order to ensure “equal justice for all”. 

As an originalist and textualist, Justice Barrett believes that this means interpreting the Constitution as law, according to its original public meaning, the meaning that the people would have understood at the time of its promulgation. 

This method of interpretation, while it differs from that of nonoriginalists who might understand contemporary values to be more important than the historical meaning, is not the exclusive property of either so-called ‘conservative’ or ‘liberal’ judges. 

Supreme Court Justices Black, considered a liberal, and Scalia, considered a conservative, were both textualists.

Such ‘bi-partisan’ use also hints at the reality that judges who subscribe to this method of interpretation do not therefore presume a certain outcome for the cases they adjudicate. Justice Barrett noted of her originalist mentor, Justice Scalia, “His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men.”

What do the facts, then, have to say? Does Justice Barrett herself live by these words? 

A study done by University of Virginia law professors Joshua Fischman and Kevin Cope on the more than 1700 cases that Barrett heard on the Seventh Circuit showed that her voting changed, depending upon the composition of her panel. Their analysis demonstrated that she “voted in a liberal direction about 20 percent of the time when at least one Democratic nominee is on the panel but only about nine percent of the time when the panel is composed of three Republican nominees.” 

What does this reveal? In light of this study, it can certainly be contended that Justice Barrett is open to considering  arguments that challenge her, and would seem to suggest, at least in part, that her ‘political preferences’ are not the sole, illuminating factor in her interpretations. 

The American Bar Association’s letter, which rated her well-qualified in terms of her ‘integrity, professional competence, and judicial temperament’; her Seventh Circuit panel decision on the 2019 Price v. Chicago, in which she upheld a ‘bubble ordinance’ keeping prolife sidewalk counsellors from approaching within eight feet of a person 50 feet from an abortion clinic and her evenhanded questioning in her first Supreme Court case, Fulton v. City of Philadelphia, which addresses the questions of Catholic Social Services’ refusal to certify same-sex couples as foster parents, all point in the same direction: political preferences and  personal beliefs do not seem to be determinative in her interpretation and rulings.

Image courtesy of WikiMedia

However, is it legitimate for a Catholic judge – or any Christian judge for that matter – to prescind from their beliefs?

Is Justice Barrett’s judicial duty being discharged at the expense of her faith?

This is where it becomes important to understand how judicial work is viewed by the Catholic Church, by its Popes and in its moral teaching. 

For the Church, the judiciary plays an important role in the balance of powers essential for modern democracy. Judges fulfil this role, not by imposing a utopian interpretation of the Bible through their sentences, but by ‘operating according to [their] own specific competence and responsibility…’, what the Second Vatican Council called the ‘rightful autonomy’ of lay Catholics in society. 

As St John Paul II reminded the Italian Association of Judges in 2000, “The search for the truth of facts and proofs, and the correct application of the law are two of the most important requirements of the judge’s role and call for total freedom from prejudice and a constant effort of study and examination.”

In this manner, the work of a judge is never static, a mere copy and paste of the original text. Instead, it is ongoing. “Indeed,” as Pope John Paul II continued, “wherever fundamental human rights, the inalienable rights that no legislation can violate, are codified in laws, it is always possible to give them a more complete juridical formulation and, above all, a more effective application in the concrete context of social life.”

And it is truly here, in the attempt to give these ‘fundamental human rights … a more complete juridical formulation,’ that we see how the originalist, textualist manner of Justice Barrett, without prejudice or preference, without fear or favour, allows her both to say that she is a faithful Catholic and that she does not pursue her political preferences or impose her beliefs on others. 

As she has written, “Any theory of constitutional interpretation must be able to accommodate error because mistakes are an inevitable part of any human institution.” While in some cases, this means that the error remains unexamined, the traditionally weak presumption of stare decisis, or precedent, in constitutional cases also allows judges to correct that error when it is challenged by the people. 

Justice Barrett notes that these “challenges to precedent generally originate with litigants and are a means of pushing back against the proposition that the Constitution embodies the principles the Court says it does – for example, that the right to terminate a pregnancy is a fundamental one or that Congress’s power to regulate interstate commerce does not support statutes like the Gun-Free School Zones Act.”

This means that a “more complete juridical formulation of fundamental human rights,” the ongoing work of a judge, is possible, if the Constitution can always be appealed to in overturning erroneous precedent. Considering that originalists have a reputation for doing exactly that, urging and joining in overturning precedent, what can we expect from Justice Barrett?

We can expect that she will considers the facts, that she will deliberate with her colleagues, that she will put her political preferences to the side – and that through this, she will fulfil the role of a faithful Catholic judge – by aiding her fellow Justices to better formulate and seek that “equal justice for all,” for which the Court – and the people it serves – evidently yearn. 

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