Don’t listen to them, Justice Barrett

Justice Amy Coney Barrett is once again under attack—this time by former members of the People of Praise, a faith-based group in which Justice Barrett was involved. 

The former members of the group have said that the Justice’s Catholic faith and membership in the group make her incapable of impartiality in cases involving religion or LGBTQ issues.

The claim arises as the Court is preparing to hear arguments today in 303 Creative LLC v. Elenis, a case in which the state of  Colorado is attempting to force a Christian website designer to create wedding websites for LGBTQ clients. The web-designer is perfectly happy to create websites for gay clients, just not websites that celebrate gay marriage. The designer argues that her websites are unique artistic creations and that the state cannot compel speech with which she disagrees without violating the First Amendment.

There is no evidence that Justice Barrett has prejudged the issue or that she is biased for or against either of the parties to this case. Justice Barrett’s commitment to originalism and textualism serves as a guard against bias. These methods of interpretation commit judges to interpreting the words enacted by Congress and prevent them from imposing their own personal preferences. 

And, yet, a former member of the People of Praise, Maura Sullivan, told The Guardian that she didn’t believe someone who was a member of the group “could put those biases aside, especially in a decision like the one coming up.” Some of the concern arises from Justice Barrett’s position as a board member of Trinity School, an Indiana school run by the People of Praise, that adhered to views of marriage shared by the Abrahamic faiths as between one man and woman.

The Code of Conduct for federal judges provides for recusal when a judge’s impartiality might reasonably be questioned. The code gives as examples situations where the judge has a financial interest in the matter or where a close family member is a party to the litigation.

A Justice’s personal faith or membership in a religious group is not grounds for recusal. In fact, Article VI of the Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” There is not—and could not be—a requirement barring people of certain faiths from public office.

To take just one example, Justice Ruth Bader Ginsburg was a long-time advocate for certain policy positions. She founded the ACLU’s Women’s Rights Project in 1972 and played a role in 34 Supreme Court cases. While director of the Women’s Rights Project, she advocated, among other things, for a woman’s right to an abortion. Indeed, in her 1993 Senate confirmation hearings, then-Judge Ginsburg emphasized that abortion is “central to a woman’s life, to her well-being and dignity.”

These positions and political beliefs did not lead to calls for Justice Ginsburg to recuse herself from cases concerning abortion or women’s rights. Nor should they have.

This is not the first time that Justice Barrett’s religious views have been weaponized against her. During her confirmation hearings to the Seventh Circuit, then-Judge Barrett explained that her religious beliefs would not influence her decisions as a judge. “The dogma lives loudly within you,” Senator Feinstein remarked at the time.

The calls for Barrett’s recusal fail to understand the proper role of a federal judge in our Constitutional system. A federal judge should not impose her own policy preferences or morals. She does not ask how she would have written a law but instead interprets the words of a statute as written by Congress. This proper recognition of a judge as interpreter leaves to Congress the task of making law and is crucial to preserving the separation of powers contained in our Constitution.

Paul Collins, a political science professor at Amherst, was correct when he said there was “no chance” that Justice Barrett will recuse herself from 303 Creative because any “allegations of a conflict are too broad to be meaningful and could apply to membership in a wide array of religious organizations that would effectively preclude many justices from ever hearing cases about any issues that remotely involve religion.”

The calls for Justice Barrett to recuse herself from 303 Creative are not reflective of the pluralistic society in which we live. The mainstream media should not perpetuate intolerance regarding Justice Barrett’s religious views or allow critics to once again single her out from among the justices, many of whom are religious adherents, as being unable to decide cases in an unbiased manner. The justice deserves better. We deserve better.