Of all the damage Donald Trump has done and will do to the fabric of American government and democracy, nothing will be more lasting than his imposition of dogmatically narrow-minded, ideologically rigid Federalist Society-style conservatism on the Supreme Court.
Our grandchildren will live with the consequences of the goniff-in-chief’s moral and intellectual vandalism of the judicial branch. If the Republicans retain their Senate majority in November and fate and the actuarial tables hand Trump a third—or even fourth—court appointment, it could be more than a century before the oppressive burden of a culturally reactionary, plutocratically subservient court can be lifted from the nation’s shoulders.
All of the candidates Trump has under consideration have been vetted by the Federalist Society’s originalist commissar—Leonard Leo—who currently has been detached to advise the White House on the selection process. All of the prospective nominees, therefore, will share the same reprehensible views on individual liberty, workers’ rights, racial equality and social justice. One, prospect, however, is particularly dangerous and the hard-line social conservatives in Trump’s base—particularly organized Evangelical Christians—are urgently angling to secure her nomination.
Amy Coney Barrett is a 46-year-old former Notre Dame Law professor appointed last year to Chicago’s 7th Circuit by Trump. A significant part of her legal scholarship focused on the interplay between a judge’s religious convictions and their decision making. She became an instant celebrity on the religious right during her confirmation hearings, when California’s Sen. Diane Feinstein sought to question her about a legal essay in which she and a co-author argued that “faithful Catholic” judges should recuse themselves from hearing capital cases because of the church’s opposition to the death penalty.
The Democratic lawmaker’s concluded her questioning thus: “Dogma and law are two different things…And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.”
Feinstein was denounced by everyone from the New York Times to various bishops and prominent right-wing commentators for anti-Catholic bigotry and, by more scholarly critics, for violating the Constitution’s prohibition on religious tests for office. Superficially, the criticism seems justified, but genuinely evaluating Barrett’s fitness for either the appellate bench or the Supreme Court requires digging beyond the superficial. She’s a bit of a stealth candidate, and a great deal that’s important about her is not quite what it appears to be.
Take, for example, her conception of the legal vocation: “A legal career is but a means to an end,” she said in one address, “and that end is building the Kingdom of God.” If ever there were contested territory, it’s that mythical divine kingdom, and it doesn’t seem unreasonable to wonder just which version of its disputed geography appeals to Barrett.
A coalition of hard-right religious conservatives are sure they know and not only wrote to Trump urging Barrett’s selection, but also argued that it ought to proceed even if the Senate confirmation fight is so contentious the nomination fails: “It is better to have a vacancy until next year than to fill the seat with a weak nominee who will betray your legacy and the Constitution for the next 40 years,” leaders of the American Family Association, the American Principles Project and the Judicial Action Group wrote to the president last week.
It’s a safe bet that their full-throated intervention wasn’t triggered by Barrett’s alarming criticism of the Miranda warnings required by settled law that dates back more than half a century: “The Miranda doctrine, which inevitably excludes from evidence even some confessions freely given,” the then-Notre Dame Law professor wrote, “is an example of the court’s choice to over-enforce a constitutional norm developing prophylactic doctrines that go beyond constitutional meaning.”
That sentiment is of a piece with Barrett’s belief, which religious conservatives find particularly appealing, that judges accord too much deference to stare decisis—the principle that legal precedent ought not to be recklessly ignored. “I tend to agree with those who say that a justice’s duty is to the Constitution,” she once wrote, “and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
Barrett, for example, holds that the Constitution does not contain “a right to privacy” and that, therefore, any decision—no matter how long-standing—that cites such a right is ripe for overturning. Griswold v Connecticut, Miranda v Arizona, Gideon v Wainright. . . .or, just maybe, Roe v Wade, anyone? In fact, the legal article that so bemused Feinstein contains a fairly strong indication of how Barrett would rule on any case involving reproductive rights.
Considering whether a “faithful Catholic” judge also ought to recuse themselves from cases involving abortion, she and her co-author wrote: “The abortion case is a bit easier, we think Both the state and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child, whereas the moral objection to capital punishment is not that it is unfair to the offender.”
The condemned prisoner, of course, might take another view, but the Federalist Society requires that its members check their empathy at the robing room door.
Republicans and the religious right—which nowadays encompasses a disturbing number of Catholic bishops—will argue that the Senate has no right to inquire about the origin or strength of Barrett’s convictions on these questions because doing so is an impermissible intrusion on the formation of her private conscience and an imposition of a constitutionally prohibited religious test for office.
The notion that lawmakers constitutionally charged with consenting to presidential appointments do not have a right—a duty, in fact—to inquire about a nominee’s values and views and their philosophical source is, to say the least, politically pharisaic. It’s worth remembering, moreover, that we now understand the no-religious-test standard in an expanded sense that respects the legitimate privacy of individual conscience—which is a good thing. The prohibition was inserted into the Constitution, however, merely to prevent the new republic from requiring public officials to belong to an established church, as the English crown did.
Let’s imagine, for example, that the nominee for some federal post belongs to a group seeking to resurrect traditional Aztec religious practices and, therefore, campaigning to legalize human sacrifice. Are the intellectual steps that brought him into the group, the degree to which he embraces its values or his views on the sanctity of human life really out of bounds?
Barrett’s backers want to pretend that her extreme views are the product of her “faithful” Catholicism, which is how more traditionally inclined Catholics like to style themselves. In fact, she is a life-long member of one of the more bizarre Catholic sects that sprang up in the wake of the Second Vatican Council. The People of Praise to which she belongs has all the authoritarian aspects of a cult.
It’s members swear a life-long covenant with one another and are assigned a spiritual guide to whom they are accountable—a “head for men” and, until recently, a “hand-maid” for women—and who define “God’s plan” on everything from their place of residence to choice of a career or spouse. The group considers itself part of the “charismatic renewal” that was briefly popular and cultivated the so-called “gifts of the spirit” after the council. In practice, they are closer to the charismatic Evangelical Protestants than to other Catholics.
In their services, the People of Praise engage in prophecy, speak and sing in tongues and practice faith healing. Frankly, as a religious believer raised and educated in the Catholic tradition of moral reasoning, I’ve never been able to discern the difference between the gifts of the spirit and ordinary religious hysteria—and strongly suspect it’s a distinction without a difference. In any event, it’s an ethos that ought to give any reasonable person the creeps.
People are free to hold any religious belief they choose, but some are just nonsense, and what the People of Praise believe is nonsense on stilts. If someone really holds, as Barrett does, that she and those around her can prophesy, speak or sing in no known language or cure illness without recourse to medical science, it raises serious questions about her judgment.
To believe such things—and there is no reason to question the sincerity of Barrett’s convictions—requires a suspension of healthy skepticism and critical intelligence, as well as the capacity for balanced, sober deliberation and judgment.
Somehow, all those things seem desirable—even essential—in a Supreme Court justice. Senators should not allow themselves to be intimidated into ignoring these issues by the bullying of the religious right and partisan Republicans.
(Image credits: Shutterstock, CSPAN)