Recusal Refusal: Dilemmas of Faith and Law for Amy Coney Barrett

By Ken Burrows

Around the same time Amy Coney Barrett was rushed through a confirmation process in 2020 and hastily sworn in as a new Supreme Court justice, she sought to assure her impartiality with this remark: “A judge declares independence not only from Congress and the president but also from the private beliefs that might otherwise move her.” Taken literally, this is exactly as things should be for a SCOTUS justice. But is this how things are for Amy Coney Barrett? Does she judge independently of “private beliefs that might otherwise move her?

In a 1998 Law Review article that Barrett co-authored, the opening abstract engages this issue in the context of capital punishment. The abstract plainly states that the Catholic Church's opposition to the death penalty “places Catholic judges in a moral and legal bind.” Why? Because “these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, [but] they are also obliged to adhere to their church’s teaching on moral matters.”

The abstract went on to say the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job. “Catholic judges will want to sit whenever possible without acting immorally,” says the abstract. “However, litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense.” The article posited that due to the “moral impossibility” of a Catholic judge to enforce capital punishment, there is sufficient reason for such a judge to not participate in a decision when civic duty and moral duty are at odds.

In short, more than two decades before ascending to the SCOTUS bench, and again after becoming a Supreme, Barrett endorsed the idea that a judge’s actions should stay independent of “private beliefs,” and a judge should recuse if she or he cannot maintain that independence.

A commitment to recuse, if needed

And yet . . . in this same Law Review article, Barrett criticized a response Supreme Court Justice William Brennan had given at his 1957 confirmation hearings, to a question about keeping matters of faith and law separate. At that time Brennan had said he took his oath “unreservedly” and “there isn’t any obligation of faith superior to that.” Brennan said on cases that would come before him, his civic oath alone would govern. Barrett and her co-author disagreed with Brennan’s stance. In their article they wrote: “We do not defend this position [of Brennan] as the proper response for a Catholic judge to take with respect to abortion or the death penalty.” Barrett recommended instead that judges should “conform their own behavior to the [Catholic] Church’s standard.”

Notably, when given an opportunity to repudiate this statement at one of her own judicial confirmation hearings, she declined to do so. Instead, at that time Barrett told the Senate Judiciary Committee that the proper conclusion was that Catholic judges should recuse themselves from such cases. She assured the committee that she would recuse herself if she was unable to apply the law but added that she could not think of any cases in which she would feel the need for such recusal on her part.

No recusal needed?

We of course know that a quarter century later, Barrett found herself faced with a dilemma (or at least should have seen it as a dilemma) as to whether her private beliefs should warrant recusal from rendering judgment in the case of Dobbs v. Jackson Women’s Health Organization. There was never any doubt regarding her private beliefs about abortion. She had even once opined that the Catholic prohibition on abortion is “absolute,” more so than the prohibition on capital punishment. She had stated that abortion is “always immoral” and that women should not be permitted to obtain an abortion even in cases of severe fetal abnormality. 

According to a report in The Guardian, Barrett once signed a full-page newspaper advertisement sponsored by an extreme anti-choice group. The letter reportedly endorsed unscientific anti-abortion beliefs, adding that discarding unused IVF embryos ought to be criminalized. The signers vowed to oppose abortion on demand and defend the right to life “from fertilization to natural death.” The letter also said: “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.”

Did these not constitute “private beliefs” that a judge should stay independent of in her civic actions? They were certainly private to an extent. Because according to the Freedom From Religion Foundation (FFRF), Barrett did not disclose her affiliation with the anti-choice group in her formal answers to the Senate Judiciary Committee questionnaire for either her nomination to the Seventh Circuit or the Supreme Court. But did she stay independent of her beliefs? Hardly. Despite her absolutist beliefs about abortion, in the Dobbs decision that overturned Roe v. Wade Barrett apparently saw no reason to recuse.

Building the “Kingdom of God”

Perhaps none of this should be all that surprising if we consider what Barrett told a Notre Dame Law School commencement in 2006. There she told graduates their Catholic mission made them “a different kind of lawyer” with “implications” derived from their Catholic mission. She described one of those implications this way:

“You will always keep in mind that your legal career is but a means to an end, and … that end is building the Kingdom of God. You know the same law, are charged with maintaining the same ethical standards, and will be entering the same kinds of legal jobs as your peers across the country. But 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.”

This does not sound like the kind of lawyers who would “declare independence from private beliefs” if and when they might assume the formal role of a judge.

It’s well known now that Barrett has been involved with a religiously conservative group called People of Praise. This group once stated in its official magazine that “God is really interested not just in men’s souls but also in their whole life, work, and enterprise. He wants all of it transformed into his kingdom.” The magazine went on to say that all secular or worldly matters — including “criminal justice and the courts” — are “meant to be transformed into the Kingdom of God.” People of Praise members reportedly also take a loyalty oath, called a covenant, seen as an unbreakable holy pact with God.

Potential dilemmas to come

Where else might Barrett’s private beliefs affect her judicial reasoning and actions? There are multiple possibilities. She has personally endorsed several components of Catholic dogma. FFRF reports that in 2015 she signed a letter from “Catholic women” to the “Synod Fathers in Christ” that read in part: “We give witness that the Church’s teachings — on the dignity of the human person and the value of human life from conception to natural death; on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman.”

This would indicate that Barrett supports Catholic teachings against death with dignity legislation, against contraception and abortion, against LGBTQ rights and marriage equality, and even against divorce. A number of such issues always have potential for Supreme Court involvement, especially as religiously conservative operatives maneuver more frequently than ever before to pursue legal/judicial action on them.

Barrett has also trained students in a legal fellowship program of the Alliance Defending Freedom (ADF).

The Blackstone Legal Fellowship is a summer program ADF established to inspire a “distinctly Christian worldview in every area of law,” its tax filings show. It seeks to show students “how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America.” ADF is strongly anti-abortion, anti-marriage equality, and anti-LGBTQ in general. It is famous for advocating extreme religious privilege in civic matters, including a “religious freedom” right to be exempt from anti-discrimination laws.

Barrett had also in recent times favored allowing churches to hold large group worship services in the midst of a still active pandemic, even though such gatherings were known to often be virus super-spreaders. She has favored taxpayer funding of private religious schools and has disagreed with court case precedents that bar public schools from imposing religious prayer on students.

Where does Amy Coney Barrett stand?

So there are plenty of potential instances to come in which Barrett could find herself confronting the dilemma of what to do when her private beliefs significantly affect her judicial actions. There are plenty of instances in which she has already confronted such dilemmas as a SCOTUS justice. Cathleen Kaveny, a professor of law and theology at Boston College, told the Jesuit magazine America in 2017, “You can’t say that faith on the one hand has ramifications for politics, law and the common good and on the other hand expect not to answer questions about it.”

So the question is: Where does Amy Coney Barrett stand when her private beliefs appear to be a key driver of her judicial action?

As long as 25 years ago, Barrett suggested a judge should recuse herself when faced with such a dilemma, because “the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense.” She is yet to recuse herself when those sorts of situations have arisen.

"I commit to you to fully and faithfully applying the law of recusal.” 

The essay Recusal Refusal: Dilemmas of Faith and Law for Amy Coney Barrett was originally published in the Freethinkers of Colorado Springs monthly newsletter in September of 2023.