Amy Coney Barrett Is Not Qualified to Be a Supreme Court Justice

Barrett acknowledges she applies a "religious test" to every legal decision. Her legal philosophy should disqualify her.

By Alan Singer | 30 September 2020
Common Dreams

Supreme Court nominee Amy Coney Barrett signed a letter in 2006 that included a call for the end of Roe v. Wade, denouncing the seminal court decision that provided a legal right to abortion as “barbaric”. (Image: Rachel Malehorn / Wikimedia Commons / CC BY 3.0)

Opposition to Donald Trump’s Supreme Court nominee, Amy Coney Barrett, has centered on his efforts to put her on the bench weeks before a Presidential election and her rightwing judicial positions. In three years since Trump appointed her a federal appeals court judge, Barrett has opposed reproductive freedom, gun regulation, immigrant rights, and efforts to combat discrimination. Ultimately disqualifying, however, are Barnett’s own statements about how her religious views shape her legal philosophy and that her primary goal as a lawyer is “building the Kingdom of God,” not defending the Constitution of the United States.

Supreme Court Justices are required to take two oaths of office prior to taking their lifetime position on the court, the Judicial Oath and the Constitutional Oath. According to Article VI of the United States Constitution, all judicial officers “shall be bound by Oath or Affirmation, to support this Constitution.” It also says “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Since passage of the Judicial Improvements Act of 1990, judicial appointees affirm that they “will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.”

Since the Constitution forbids a “religious test,” Amy Coney Barrett’s membership in a Christian fundamentalist group is not a disqualification for office, however, her legal philosophy is. Barnett would be swearing to something she does not believe and will not do, which is a federal offense.

In 2017 Senate confirmation hearings, Barrett asserted “If you’re asking whether I take my faith seriously and I’m a faithful Catholic — I am, although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.” However, according to a 1998 journal article that Barrett co-authored, “(Catholic judges) are . . . obliged to adhere to their church’s teaching on moral matters.” In the same article, the authors quoted Justice William Brennan, who argued at his Senate confirmation hearing that in his position on the Supreme Court “what shall control me is the oath that I took to support the Constitution and laws of the United States and [I shall] so act upon the cases that come before me for decision that it is that oath and that alone which governs.” Barrett and her co-author commented that “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty”.

In a 2006 commencement speech to graduates of Notre Dame Law School, Barrett went even further in spelling out the role of religion in her legal philosophy proclaiming “A legal career is but a means to an end … and that end is building the Kingdom of God.” Barrett also recommended that Catholic lawyers consult “God before making a choice” asking God, “In which situation can I best serve You? . . . we are a community engaged in the enterprise of legal education and scholarship, we are also a community engaged in the enterprise of bringing about the kingdom of God.”

The United States Constitution says that judicial officers should not be subject to a religious test. The problem is that Amy Coney Barrett acknowledges she applies a “religious test” to every legal decision. Barrett has the absolute right to apply her “religious test” in her personal life and in her legal career, but not as a Supreme Court Justice and that is why her legal philosophy should disqualify her.

Alan Singer is a historian and teacher educator at Hofstra University.

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