Judge Amy Coney Barrett’s own words force her to recuse herself from abortion cases


When should the deeply held religious beliefs of a Supreme Court judge require disqualification, that is, that the judge is not involved in a particular case? A difficult question, of course, but that Justice Amy Coney BarrettAmy Coney BarrettPence requests that Roe v. Wade sent to ‘history’s ash heap’ ahead of Supreme Court abortion ruling to hear landmark abortion case this week, Graham emerges as prime ally for Biden’s legal choices MORE has already answered for herself. And his response demands that he be challenged in abortion cases.

The Supreme Court hears the arguments in Dobbs v. Jackson Women’s Health Organization Wednesday, which challenges the constitutionality of Mississippi’s ban on abortions after 15 weeks of pregnancy.

In current case law, the law is unconstitutional, as held by both the district court and the court of appeal. The two Roe vs. Wade, decided in 1973, and Family Planning in Southeastern Pennsylvania c. Casey, decided in 1992, argue that a state cannot ban abortions before viability, approximately the 24th week of pregnancy. Mississippi has asked the Supreme Court to overturn 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 had any integrity.

In “Catholic judges in capital casesPublished in the Marquette Law Review, Barrett (then a law clerk to a federal court of appeal judge) and his co-author discuss the dilemma pious Catholic judges face in capital cases. She writes that these judges are “obligated by oath, professional commitment and the requirements of citizenship to apply the death penalty,” but they are also “obligated to adhere to the teaching of their church on the issues. moral ”. They are therefore “morally prohibited from applying the death penalty”.

What should a Catholic judge do, then? According to Barrett’s article, the judge must recuse himself. She can neither apply the death penalty and violate her religious conscience, nor not apply it and violate her oath.

And even in a case where a judge has discretion as to whether or not to sentence a convicted felon to death, he cannot bring himself to keep an open mind and then pretend he has done nothing wrong if he decides to. do not impose the death penalty. Because, writes Barrett, “a judge who suspends his moral judgment during sentencing puts his conscience aside” and “breaks away from his moral moorings.” That loosing oneself is in itself a sin, she concludes – in the same way as “looking at a woman with lust” and thus committing adultery “in her mind”.

The gist of Barrett is that a “practicing Catholic judge” cannot “formally cooperate in the execution of the accused”. And for this reason, “if one cannot in conscience affirm a death sentence, the appropriate response would be to recuse himself.” To act otherwise is to “betray public trust” by manipulating the law “in order to save lives”.

What does all of this have to do with abortion? Barrett tells us in the same article that in the context of abortion, the arguments for challenging a Catholic judge are even stronger. Unlike the death penalty, the “Catholic Church’s“ bans on abortion and euthanasia are absolute ”. And also unlike the death penalty, “abortion and euthanasia take the lives of innocent people”. Abortion, she says, “is still immoral.”

Barrett’s conscience, and her fidelity to the teachings of her church, therefore do not allow her to assert a woman’s right to terminate her pregnancy, for that would be “formally cooperating” in an absolutely immoral act. But neither can it “betray the public trust” by manipulating constitutional law and precedent “in order to save (unborn) lives”. Nor can she suspend her moral conscience while she decides Dobbs, even if she was able to do it – for that too would violate her religious beliefs.

Never mind that as a Supreme Court judge she has the right to vote to overturn even long-standing precedents like Roe deer. Even Supreme Court justices are bound by the rule of law. They cannot ignore or overrule precedents based solely on their own moral compass. Rather, they must make their decisions in the context of two centuries of doctrine on the value of precedent, the need to justify any rejection, and methods of constitutional interpretation in general. And if Barrett instead relies on her “church moral teachings,” she manipulates the law just as much as if a judge morally opposed to the death penalty finds a way to avoid imposing it on a case. particular.

In Barrett’s own reasoning, then, his only option is to recuse himself. If she does not, she is, on her own terms, violating her oath of office and betraying public trust.

Suzanna Sherry is the Herman O. Loewenstein Professor of Law at Vanderbilt University. She is the author of dozens of books and articles on constitutional law and the Supreme Court.


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