Catholics, Abortion, SCOTUS, And The Case For Amy Coney Barrett–Belief And Political Principle Have Always Ruled The Court And To Deny It Is Hypocritical At Best

Supreme Court Justice Ruth Bader Ginsberg died recently (9.18.20), and both conservatives and liberals have mourned her passing.  She was a serious, principled, conscientious jurist whose presence on the court gave it solemnity and rectitude.  She was both a legal scholar and an American committed since her earliest days to the foundational American ideas of equality, equal justice under the law, and compassionate concern for the least advantaged.

Yet, on this last point, the seas part, and liberals and conservatives disagree.  RBG was a tireless supporter of progressive causes, both in her early days, burgeoning legal career, and throughout her career in the American judicial system.  When she was appointed to the Court by Bill Clinton, progressives cheered, for they would have one of their own on the bench – a woman who would never back off from her liberal principles, be a stalwart supporter of liberal causes and a tireless champion of the underclass.

Conservatives of course saw the appointment in another way.  Clinton chose identity politics over eminent qualifications, and felt obliged to nominate a woman to the Court.  More importantly he was determined to select someone who espoused his own and Democrats’ liberal agenda and would faithfully follow its precepts and principles when deciding on cases which came before her.

What, one might ask, had happened to the ideal of objective jurisprudence? Of looking at each case before the Court without preconceived notions or impressions.  Political philosophy, politics, or moral certainty should have no place on America’s highest court.  Of course no one has ever believed such a posture.  There is not a man or woman alive who is not influenced by his or her personal convictions; and there is no such thing as a completely pure, objective judgement.  

Put even more simply, since Supreme Court justices are chosen by sitting presidents, it is only normal that they would nominate individuals on the degree to which they embraced their own political philosophy.  It would be a bit of a stretch for a conservative president to nominate a liberal justice and vice versa.  The Constitution allows for presidential nomination, knowing full well that such selections will be political.  Such subjectivity, the Founding Fathers thought, would balance out – conservative presidents would nominate conservative jurists and the other way around.  No problem at all, and the democratic process would be served.

So it is with surprise and wonder to watch Democratic lawmakers go apoplectic over the likely nomination of Amy Coney Barrett, a profoundly Catholic woman who believes without question the Catholic teaching about the sanctity of life and the irredeemable sin of abortion.  She is as committed to a pro-life ethos as RBG was to a reformative, distributive, Samuel Gompers, Socialist agenda.  Neither philosophical position should have been a surprise.  Both women in their judicial decisions and personal statements have made their beliefs quite clear.  Ginsberg with her dying words enunciated most clearly and passionately her commitment to progressivism – Donald Trump should never be allowed another SCOTUS appointment or another term in office. In her last years she broke from SCOTUS tradition of objectivity – for any political statement would be an indication of political and judicial bias – and spoke loudly and eloquently of the dangers facing a Trump America. 

All well and good.  Everyone knows RBG’s political views and her championing of progressive causes, so it is no surprise that ‘Love RBG’ and ‘Saint RBG RIP’ signs are planted alongside BLM and Biden/Harris signs in neighborhoods throughout the Northeast.

So why, then, are signs championing Amy Coney Barrett spat upon, uprooted, and defaced? It is nothing less than a complete, hypocritical dismissal of the Constitution, the political process, and the essential, fundamental nature of political philosophy.  Barrett has a legitimate right to be approved as Supreme Court Justice because of her record of intelligent, reasonable, Constitutional decisions; and even because of her Catholic, faithful, obedient views on abortion and the sanctity of life.  

Not only does she have a right to judge cases which involve abortion of reproductive rights, her conservative, Catholic voice should and must be heard.  Objectivity is a fiction, and philosophers and writers for centuries have written about the slipperiness of the truth, of what actually happened, and objective fact.  All one can hope for is that she will respect the Constitution, precedent, and legal procedure.  After that, she is on her own, just like RBG, Clarence Thomas, and a hundred other Justices who have ruled on the basis of their understanding of the Constitution but more importantly their interpretation of it.

Barrett will bring to the Court a combination of religious principles and Constitutional law.  Roe vs Wade, most Constitutional experts agree, was wrongly decided.  The ‘privacy clause’ of the Constitution in no way should have been interpreted as a green light for all reproductive decisions taken by women.  There is no Constitutional guarantee for a woman’s abrogation of the right to life of the unborn.  In fact, there is even more Constitutional precedence for ruling on the rights of the unborn child over that of the mother.  

The original ruling, coming as it did during the heady early years of women’s rights seemed right and proper given the zeitgeist, but it was lacking in the legal interpretative rigor that is required of justices of the Court.  More importantly, a moral, religious, and social issue such as abortion should never be in the hands of only nine men and women, all with fierce political agendas.  It should be returned to the electoral process.

Justice Robert Jackson, speaking for the majority in Minersville Board of Education v Gobitis said the following:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

In other words there are certain rights which are indeed inalienable and they can be found in the Constitution.  The Supreme Court’s task is to find them, and when they do, it is right that their ruling should stand in perpetuity.  The majority does not always rule nor should it.

Alexander Hamilton famously questioned  the ability of the common man to make sensible, informed decisions about the nation’s well-being and future and his conclusions have been proven right time and time again; and although  the Supreme Court as envisaged by Justice Jackson, has become a bulwark against frivolous popular opinion, times have changed.  

Popular rule if not populist rule has come into vogue.  Maybe the people are right after all.  They and they alone should decide on contentious, unresolved issues such as abortion.  Barrett and her conservative colleagues will rightly overturn Roe and return the debate to the electoral process.  This is what progressives fear most – that their cherished, although unconstitutional protection of ‘a woman’s right to choose’ will be left to the unwashed.

The Democrats in the Senate are in a very precarious position.  If they hammer Barrett for her religious views, insisting that a devout, obedient Catholic can never rule objectively, they will be denying the legitimacy not only of Catholic beliefs but of personally held beliefs per se.  They will be arguing at cross purposes, denying the clear and obvious bias of Ginsberg in her rulings while assuming a worse, more prejudiced bias on the part of Barrett.  You can’t have it both ways.  Profound personal belief whether religious or secular is a given – all of us, thanks to genes, upbringing, and environment, have personal views, attitudes, and opinions formed in early childhood; and few if any can rid ourselves of them. 

All of this spells victory for Donald Trump.  He will be seen as a champion of women, a defender of the right to life, a Constitutional originalist like Antonin Scalia, and a fierce proponent of religion in public debate.  He can’t lose.

The days of JFK and the worry that his Catholicism meant that he would be ruled by the Vatican seem innocent and naïve.  The Coney Barrett issue has nothing to do with the Vatican but with profound, internal, well-formed, indicative philosophical views.  If she votes to overturn Roe, it will not be because of Pope Francis or the Catholic hierarchy, but because she believes the Church’s teaching – and of course because she believes that Roe was incorrectly decided.

it is about time that Roe is overturned, that the debate over abortion be returned to the electorate, and that the principle that religious belief – or any belief for that matter – has an  ineradicable place in jurisprudence.