The nomination of Judge Amy Coney Barrett for a seat on the United States Supreme Court raises serious questions about the propriety of personal religious faith informing the official work of public officials. The issue is even more acute when that official is one on a bench of only nine people, the decisions of which shape the legal, political, economic, and moral culture of American society. The Supreme Court has taken an outsized role in American public life, making the stakes of this nomination, and thus the state of these questions, of paramount importance.
Detractors of the nomination raise the specter that Judge Barrett will allow her personal faith to control her judgment; and they complain that she will impose Catholic dogma on American law. In the 2017 hearings on her appointment to an inferior court, California senator Diane Feinstein famously, if inartfully, told Judge Barrett, “the dogma lives loudly within you, and that concerns me.” Similarly, Senator Richard Durbin complained that as an “orthodox” Catholic she may have difficulty being an impartial jurist.
Judge Barrett’s supporters counter that she has already sworn under oath that she will not impose her personal faith on her judgment. But some of them seem to agree with the detractors that it would be a problem if she did. “There is no need to fear Barrett’s faith,” wrote Notre Dame law professor O. Carter Snead in The Washington Post, for example. “While Barrett’s faith is the source of her selflessness, it is not a source of authority for her work as a judge.”
This debate seems to have problems from all sides. In the first instance, personal religious faith should “be a source of authority” for the work of a judge; and for the judge who takes her faith seriously it always will. Inevitably, this will be a source of tension from time to time as she considers the propriety of laws that she will be asked to apply to cases before her. It is a grave mistake to say the tension is disqualifying of a candidate in whom it applies. The error springs from a fundamental mistake both about the nature of moral deliberation and the propriety of religious faith in it.
In interpreting a provision of the Constitution, or applying a law to a particular case, every judge brings her moral judgment to the question in every case, regardless of the source of that moral judgment. Indeed, Article VI of the United States Constitution requires a jurist to apply moral judgment to his office: “all . . . judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution.” That is to say, every judge is morally obligated to rule according to the Constitution, and every judge draws upon some source that informs that obligation. It cannot be any other way.
Even if the judgment is as basic as “A is not non-A,” it is moral judgment, springing from some morally informed position that truthfulness matters, and that justice cannot obtain without it.
The real question then, is not whether moral judgment informs legal opinion (it always does), but whether that moral judgment is disqualifying if its source is religious faith. The same clause of the Constitution clearly says it is not: “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Put simply, every judicial decision involves moral judgment, and the Constitution forbids disqualifying a judge if her moral judgment is informed by religious faith.
While it goes beyond the text of the Constitution, and is unlikely that its drafters considered the point, this is a necessary conclusion. For the faithful, conscientious Catholic, all problems are theological problems, and all judgments are theological judgments. But this is not different in form from anyone else. One either does or does not consider one’s religious faith to inform one’s decisions; but in both cases, one is making a theological judgment. Judge Barrett’s detractors, then, do not really object that her religious opinions inform her judgment, but rather that her religious opinions are formed by a strong commitment to her Roman Catholic faith. The word for this is bigotry.
So, what about when those judgments conflict with positive law? When an absolute moral teaching of the Church conflicts with a statute that a judge is asked to interpret and apply? If it is question of interpretation of a duly passed and signed statute, the answer is different from a construal of the Constitution itself. The former requires faithful application of the law, even if the law is contrary to the moral judgment of the judge, and assuming that the law itself is not contrary to the Constitution. Judge Barrett has said unequivocally, under oath, that this is how she judges—and her commitment to that principle is informed by her Catholic faith.
But if it is a question of interpreting contentious provisions of the Constitution itself, the Catholic judge is no less permitted to consider the moral conclusions she draws from her faith than is the non-Catholic judge permitted to consider the moral conclusions he draws from secular sources of moral judgment. To hold otherwise would be to require a religious test, which is expressly forbidden by the Constitution itself.
It is problematic, therefore, when Judge Barrett’s supporters say that her faith will have no bearing, both formally and materially, on how she judges. This at least implicitly endorses the irrational fears of her detractors. And more importantly, it would underwrite a theory of judging (and participation in political life more broadly), that is simply not possible.
Contrary to my friend Carter Snead’s conclusion, Justice Barrett’s faith will be “a source of authority for her work as a judge,” as it should be. As a justice, she will “draw on [an] extralegal source of authority — be it religious, moral or political.” Just like her eight colleagues on the bench, and the 100 Senators who will vote on her confirmation.
Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, the seminary for the Archdiocese of Cincinnati. He holds the Ph.D. in theology from Boston College, and the J.D. from Duke University School of Law.
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