I have to say a word about the hypocrisy of the Democrats’ attacks on Judge Amy Coney Barrett. The traditional knock on Catholics in public office has been that they can’t be trusted, because “they owe a blind obedience to an infallible pope, who has the keys of their consciences tied to his girdle,” as John Locke put it.
This was the concern John F. Kennedy felt obliged to deny when he spoke to the Greater Houston Ministerial Association in 1960. It’s the insinuation lurking beneath Sen. Dianne Feinstein’s charge, when Barrett was nominated to the 7th Circuit, that “the dogma lives loudly within you.”
We see a modern variation on this theme in the indictment of the People of Praise, a small Christian group that Barrett may have ties to. Such organizations, her critics archly suggest, shape the personal convictions of their members, who may carry them over into the performance of their public responsibilities.
There is a principle underlying these criticisms that I think we all subscribe to. It is that in a democracy, the people are sovereign, and judges should not allow their own convictions to override the will of the people, as it is expressed in the Constitution and laws.
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Barrett does not dispute this principle. Indeed, she embraces it more firmly than her critics. She believes, as Justice Antonin Scalia did, that judges should read the Constitution according to its original public meaning, because that is what the people agreed on when they adopted it. If we think it needs improving, that should be done in democratic fashion too, as Congress and the states have done 27 times through the process provided in Article V.
One can imagine a case where the Constitution directed a Catholic (or any other conscientious judge) to do something against her conscience. Until passage of the Thirteenth Amendment, for example, Article IV required judges to return fugitive slaves to their masters. But Barrett has observed that in such a case, the proper thing to do would be for the judge to recuse herself, a resolution provided for by Title 28, Section 455, of the U.S. Code.
Consider now the irony of her opponents’ concern that a Justice Barrett would let her own personal convictions (or those of the church, or the People of Praise) guide her decisions on the court. Roe v. Wade created a right to abortion out of whole cloth. As John Hart Ely, the author of “Democracy and Distrust,” put it, “Roe lacks even colorable support in the constitutional text, history or any other appropriate source of constitutional doctrine.”
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Barrett’s critics also observe that she probably shares the orthodox views of love and marriage typical of Catholics and the People of Praise. The unstated implication is that she might disagree with the court’s decision in Obergefell v. Hodges extending marriage to same-sex couples.
But as Chief Justice John G. Roberts observed in that case as well, “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this court’s precedent.”
The real concern about Barrett is not that she would disregard the principles of democracy, but that she would heed them, and leave the course and pace of social progress up to the voters. Her opponents don’t care about the separation of powers; only about outcomes.
This also explains their fascination with the doctrine of stare decisis — the idea that courts should adhere to precedents even when they are wrongly decided. It doesn’t matter to them that the court behaved like a legislature in Roe and Obergefell. They want a judge who will leave those decisions standing.
Who, then, is the real proponent of democracy?
Garvey is president of The Catholic University of America in Washington. Follow him on Twitter @CatholicPres.