Judge Amy Coney Barrett for her intellect instead of Catholic faith
The image was striking and unsettling with a line of women in red hoods under a Newsweek headline that read, “How Charismatic Catholic Groups Like Amy Coney Barrett’s People of Praise Inspired The Handmaid’s Tale.” Writer Lauren Hough responded immediately by declaring that Barrett, a potential Supreme Court nominee, belongs to a “f-----g cult,” and others labeled Barrett as some type of judicial Serena Joy, a character on the show who imposes virtual slavery on fellow women.
Few Supreme Court nominees, let alone a still unnamed nominee, have been labeled as threatening to reduce all women to handmaiden birthing machines in a theocratic hellscape. Of course, the extraordinary career of Barrett should be a celebration of feminism. She graduated at the top of her law class, became a national thought leader, and ascended to one of the highest courts in the nation. She did that in her career while raising seven children, including two children adopted from Haiti.
The Newsweek story happens to be untrue. The outlet ran a correction that author Margaret Atwood “never specifically mentioned the group as being the inspiration for her work.” The only connection was that a clip that referenced the People of Praise was found in her home. Newsweek said it “regrets the error” but did not retract the story.
Imagine if Newsweek published a picture of the Taliban with that type of picture for a Muslim nominee. But Barrett is a devout Catholic, and some liberals have found a certain release in voicing raw intolerance for certain groups. Recently, many of us criticized statements attributed to Attorney General William Barr seeking out the use of sedition laws against rioters. However, instead of raising constitutional objections, Harvard professor Laurence Tribe raised the Catholic faith of Barr, writing, “It’s way beyond monarchical. It’s paranoid and dictatorial. Opus Dei, anyone?”
It did not matter that Barr is not a follower of the conservative Opus Dei movement. Tribe still portrayed him in the sinister light of a conservative Catholic. It is like someone disagreeing with Alan Dershowitz and noting that he is Jewish. In reality, however, the religious intolerance of Tribe is matched only by his religious ignorance. Opus Dei is not a gateway faith to monarchy and has nothing to do with such ideas and policies.
The Catholic faith of Barrett has been used to argue against her. During her appellate court confirmation hearing, Dianne Feinstein, who is the ranking member of the Senate Judiciary Committee, cited her Catholic beliefs as the reason “many of us on this side have a very uncomfortable feeling” and “the conclusion one draws is the dogma lives loudly within you. That is of concern.” Feinstein was referring to the writings of Barrett on her Catholic faith and the defense of morality in the law.
Justice Ruth Bader Ginsburg was religious. She said, “I am a judge, born, raised, and proud of being a Jew. The demand for justice, for peace, and for enlightenment runs through the entirety of Jewish history and Jewish tradition.” She is the only justice to have a mezuzah affixed to her office door, and reportedly had the Jewish injunction “tzedek tirdof, or “justice shall you pursue,” woven into one of her jabots, or collars, worn on her Supreme Court robes. She studied and attended conferences on Jewish religious law. She insisted traditional certificates reading “the year of our Lord” be changed as unacceptable for Jewish lawyers. She was right, but her references to faith did not make her a religious zealot.
Justice William Brennan was a devout Catholic who had faced religious prejudice in his career and his confirmation. He would become one of the greatest voices against establishment power in the history of the Supreme Court, barring any form of religious favoritism. At his confirmation hearing in 1957, however, Brennan was forced to assure the Senate that he would keep his Catholic faith in check. Like Barrett, senators raised discomfort with his reference to his beliefs in guiding his legal career.
Brennan reaffirmed the role of human affairs as “the superintending care and control of the great governor of the universe.” Likewise, Barrett has been attacked for stating that a “legal career is but a means to an end” and “that end is building the kingdom of God.” However, she went on to tie the statement to being a righteous person. “If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.”
Religious prejudice is not confined to Congress. The Supreme Court itself has struggled with religious prejudice. Justice James McReynolds, one of the most loathsome creatures to ever serve, was a virulent sexist, racist, and antisemite. He despised the addition of the first Jewish justice, Louis Brandeis, today considered one of the greatest justices. When Benjamin Cardozo was later considered, McReynolds wrote to President Hoover demanding that he not “afflict the Supreme Court with another Jew.”
Barrett, like Ginsburg, can believe deeply in the teachings of her faith and even support religious legal dogma in her private life without advocating orthodoxy from the bench. Further, many believe morality is relevant to the law. For the record, I have written and litigated in opposition to law based on morality. Barrett is an intellectual who has written on morality and the law. Justice Neil Gorsuch also has written on this issue.
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Even as someone who is fervently secular in my views, I prefer someone who has thought deeply over these issues even when they have reached opposing conclusions. Nominations have often favored jurists who never uttered an interesting thought in their careers. The Supreme Court should be a place for those, such as Ginsburg, who rise to it with well articulated jurisprudence. While both Harvard professor Noah Feldman and I testified on opposing sides in the impeachment of President Trump, we have both praised Barrett for her intellect and writings in her legal career.
Barrett has lived and thought boldly. She is not another nominee with an empty portfolio that avoided controversial ideas or clients. It is the real “Handmaid’s Tale” for nominees who are told, “All you have to do is keep your mouth shut and look stupid. It should not be that hard.” That would be hard for Barrett. She has something to say and is a true intellectual.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.