As I write this, it is unknown whether President Donald Trump will win or lose his bid for reelection. Either way, however, his most lasting legacy may be his naming three new justices to the U.S. Supreme Court — including, of course, Amy Coney Barrett.
The debate over Justice Barrett’s confirmation, however, highlighted some disturbing aspects of our current political discourse.
Senators opposing her confirmation as a federal appellate judge in 2017 saw a public backlash when they openly probed her Catholic faith, despite the Constitution’s ban on a religious test for public office. They did not repeat that mistake in 2020. But instead, opponents in the Senate and the media used her past comments and actions on various issues as a proxy for attacking that faith.
She had once signed a newspaper ad stating that a new human life begins at conception — a fact that the Catholic Church accepts, but that anyone can look up in an embryology textbook. And some news outlets expressed alarm that she had served on the board of a Christian school whose policies express “anti-LGBTQ rhetoric,” for example that marriage is a union “between a man and a woman.” That is simply Catholic teaching, and a tradition of other biblical faiths.
But it became clear during her confirmation hearings that Justice Barrett believes the task of a judge is not to impose one’s personal views but to carefully apply the Constitution as written and leave the making of new laws to lawmakers.
And like her predecessor Ruth Bader Ginsburg, she calmly refused to predict her decisions on future cases, because those must rely on the facts and arguments presented by both sides in those cases.
Justice Barrett’s qualifications, demeanor and patience with strange questions — including one senator’s question whether she had sexually assaulted anyone — impressed many Americans, and surveys have showed majority support for confirming her.
That makes a speech by Senate minority leader Charles Schumer, the day before her confirmation, especially disturbing.
Sen. Schumer attacked Justice Barrett as a danger to “the lives and freedoms of the American people” and their “fundamental rights.” He cited “the right to affordable health care, to make their own private medical decisions, to join a union, vote without impediments, marry whom they love.” Confirming her, he said, would be “an inerasable stain on this Republican majority forevermore.”
Justice Barrett has not said she would do any of these things, some of which are matters of legislative choice more than constitutional mandate. And Senator Schumer’s reference to “private medical decisions” was code for abortion — although the Supreme Court’s ever-shifting abortion jurisprudence has said since 1992 that the “right” to abortion arises from a sweeping idea of personal “liberty” rather than medical privacy.
Oddly, Sen. Schumer told Americans that Republican Senators were “breaking faith with you” by doing “the exact opposite” of what they promised in 2016. But the party’s 2016 platform promised to appoint “judges who respect traditional family values and the sanctity of innocent human life,” and on same-sex marriage to appoint those who “respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions.” It seems that what he fears is the possible keeping of those promises.
Justices like Amy Coney Barrett may lead the court to a more modest role, leaving issues to the people and their elected representatives when the Constitution says little or nothing about them. But it seems that leaders in the party known as Democratic, which I’ve belonged to all my adult life, may be afraid of … more democracy.
– – –
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.