Monday, October 12, 2020

Judge Barrett's Views on What a Faithful Catholic Judge Should Do When She Has Conflicting Religious and Judicial Obligations

Marty Lederman

The topic of my Law of Religion class today was what government actors should or must do when their legal and religious obligations conflict with one another.  In addition to the speeches on this topic I typically assign, by John F. Kennedy, Barack Obama and Mitt Romney, this year I also assigned two other readings:  a 1998 article co-written by Amy V. Coney (now Amy Coney Barrett), two decades before she became a judge, and a 2002 essay written by the Supreme Court Justice for whom Barrett clerked just after publishing her article, Antonin Scalia.

I agree with Mark Tushnet about Barrett’s article, which she co-authored with her former professor John Garvey (now the President of Catholic University):  It’s “a model of serious scholarship — analytically precise, willing to take clear positions on [at least some] important and controversial questions.”  As Bob Tuttle aptly described it, it’s “sophisticated moral casuistry”—a “rare example of legal scholarship as a pastoral activity.”
I further agree with Professor Tushnet that the Senate Judiciary Committee’s discussion of the article during Judge Barrett’s 2017 confirmation hearing was less than illuminating (to say the least).  As Mark writes, “[t]he article’s arguments are complex and subtle, and the confirmation process is ill-suited to addressing arguments of that sort.”  I therefore concur that Senators would be well-advised to avoid the subject in the confirmation hearings this week.  And I should be clear at the outset that I’m not suggesting there’s anything in the article that should cause any Senator to oppose her nomination.  I’ve already written here about why I have serious concerns about yet another Republican-appointed Justice; and I have little doubt that a Justice Barrett will solidify a minority-appointed and minority-confirmed Court whose jurisprudence will be deeply problematic.  Therefore there are plenty of reasons to oppose Barrett’s confirmation.  But her admirable, serious 1998 article isn’t one of them.

Even if the article isn’t the subject of discussion at the hearings this week, however, I think there’s a great deal of value for others—including me and my students!—to grapple with it, not only because it’s thought-provoking, but also because it sheds light on the views of a jurist who might end up serving on the Court for decades to come and who’s given a lot of thought to the important question of how a judge might reconcile his or her civil duties and religious (or other moral) convictions when those two commitments appear to be irreconcilable. 

If Judge Barrett’s 2017 confirmation hearing was any indication, there’s a great deal of misunderstanding about just what she argued in her 1998 article.  Moreover, as I explain below, she herself contributed to that confusion by offering some surprisingly unequivocal answers at the hearing about the dueling obligations of an “orthodox” Catholic appellate judge—i.e., a judge who’s committed to being faithful to the teachings of her Church—in cases involving abortion and the death penalty.

I thought it might therefore be useful to more carefully examine what Judge Barrett and Dean Garvey actually wrote in their 1998 article, and then raise a few questions about the apparent tension between that article and Judge Barrett’s 2017 testimony on the same subject.  

It’s important to understand that the 1998 Garvey/Barrett article is only incidentally about a judge’s civil obligations under the law or ethics rules.  Its principal subject is, rather, what Catholic doctrine requires of a judge committed to fidelity to the Church's teachings.  As I read it, the article explicates or argues in favor of at least a half-dozen important propositions about Catholic doctrine and the moral obligations of such a jurist.  Of course, it’s possible that Judge Barrett no longer agrees with all of those specific arguments, or with certain nuances in the article.  I’m not aware, however, of any reason to think that her current views deviate in any material way from the following six principles:

1.  The Death Penalty is Morally Impermissible

Judge Barrett apparently accepts—or, in any event, she accepted 22 years ago—the Church’s teaching that capital punishment is virtually always morally prohibited.  In particular, she and Dean Garvey agreed that execution is never permissible for purposes of punishment, desert, or retribution.  (The “most important” reason for this conclusion, they wrote (p.309), was “the example of Jesus, who taught and practiced that we should love our enemies.”)  To be sure, the Church’s view (as of 1998) was that an execution theoretically could be permissible in a case where it’s the only possible way of effectively defending human lives against an unjust aggressor.  Even so, Barrett and Garvey agreed with the Church (p.316) that such cases of “absolute necessity” would be “very rare, if not practically nonexistent” (quoting Pope John Paul II’s 1995 Evangelium Vitae).  Indeed, Garvey and Barrett wrote (id.) that “[i]t is difficult to think of examples.”  After Barrett wrote her article, the Catechism of the Catholic Church, the official compendium of church teaching, went one step further:  It decreed that the death penalty is “inadmissible.”  And then, just this past Saturday, Pope Francis issued an encyclical letter that not only explained why the death penalty is categorically inadmissible, but also called upon “[a]ll Christians and people of good will” to “work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom.”

2.  The Moral Prohibition Against Abortion is Even Clearer and (if Anything) More Categorical

No such subsequent development in Church doctrine was necessary with respect to abortion:  As Barrett and Garvey wrote, even as of 1998, the Church’s moral injunction against abortion was understood to be “absolute” (p.307)—i.e., that it’s a “flat,” or categorical, prohibition (p.316), and that therefore moral questions involving a judge’s participation in an abortion case are even “easier” than in a death penalty case because “[b]oth the state and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child, whereas the moral objection to capital punishment is not that it is unfair to the offender” (p. 344 n.159).

3.  A Judge’s “Cooperation” in an Execution or Abortion Might (or Might Not) Be Morally Impermissible, Depending on the Context and the Judge’s Role

It follows that to engage in the actual act of abortion or execution would be morally impermissible, and that therefore an “orthodox Catholic”—that’s the term Barrett and Garvey used to refer to a Catholic who is “faithful to the teaching of the church on the subject” (see p.305 n.8)—must never engage in such conduct.  (It’s my understanding—though I could be mistaken—that Judge Barrett considers herself to be such an “orthodox Catholic,” and thus bound by the Church’s moral imperatives.)  

Judges themselves, of course, do not (at least not in their judicial capacity) engage directly in the acts of execution or abortion:  “Though one might say that it was simply and unqualifiedly wrong to flip the switch or pull the trigger that kills a human being, this is not what judges do” (p.306).  Judges do, however, “cooperate in many ways more or less direct” with such “evil act[s]” (id.) if and when they take steps that result in a party (e.g., the state; a woman or doctor) being able to engage in such acts.  One of the primary objectives of the Barrett/Garvey article, therefore, was to examine which of those manners of judicial “cooperation” with the death penalty (and abortion) are themselves morally prohibited under Catholic teachings, and which aren’t.  

For starters, Barrett and Garvey explained that an “orthodox” Catholic (again, that’s someone who considers herself bound to be faithful to Catholic doctrine) may not assist someone else in committing such wrongs where the aiding party “shares in the immoral intention of the other,” i.e., acts with the intent (i.e., the aim) of causing the sinful conduct to occur.  Catholic moral theology refers to such “shared intention” assistance as “formal cooperation.”  Like performing the action itself, formal cooperation is categorically impermissible.  Interestingly, Barrett and Garvey conclude (pp. 320-324) that a trial judge engages in such impermissible formal cooperation with evil when she signs a judgment consigning a defendant to the penalty of death—and that therefore an “orthodox” Catholic judge may not preside over the sentencing phase of a capital case, even if she agrees that execution is morally impermissible and wishes that it didn’t occur.  

Like Edward Hartnett, I question whether that conclusion about formal cooperation of the trial judge was right, especially in the case where the judge’s issuance of the judgment is based upon a jury’s decision to impose the death sentence:  My understanding, like Hartnett’s, is that there’s at least a “substantial basis” in Catholic moral theology to conclude that such involvement by a trial judge wouldn’t be formal cooperation—in part because the ultimate decision whether or not to impose the penalty remains in the hands of the executive, who could commute the death sentence.  (See Hartnett’s helpful discussion of his disagreement with Barrett at pages 242-246 of his excellent article.  See also Bob Tuttle:  “Even the judge who imposes the jury’s sentence might plausibly claim to be only a material participant—Garvey and Coney reject such a claim, but St. Thomas Aquinas can be cited in its defense.”)  

In any event, whatever the right answer to that question might be, we can put it aside because it doesn’t affect the morality of an appellate judge’s involvement in a capital (or abortion) case, where there’s virtually never any prospect of formal cooperation with evil. 

As Barrett and Garvey explained, if an appellate judge (with her colleagues) upholds a death sentence, or a woman’s or a physician’s right to have or to perform an abortion, that judge ordinarily engages not in “formal” cooperation but in what’s known as “material” cooperation with evil—cooperation without intending or desiring that the other party engage in the sinful act.  And “material cooperation” with evil isn’t categorically impermissible:  As Barrett and Garvey explain, and as I discuss below, that religious question depends upon a complex, context-dependent set of factors.

4.  An “Orthodox” Catholic Judge May Not Engage in Morally Impermissible Cooperation with the Death Penalty or Abortion, Even Where Her Judicial Oath Would Require It

Importantly, in those cases where the judge’s “cooperation” with execution or abortion would be morally impermissible—i.e., where the judge’s civil and religious obligations would conflict with one another—Barrett and Garvey emphatically reject the common view that the religiously faithful judge can or should or must comply with her civil, judicial oath, even if it means acting immorally (p.347).  (As examples of the view they reject, Garvey and Barrett cite Governor Mario Cuomo’s defense of his decision to allow abortion in the state of New York, and Justice Brennan’s answers to questions at his 1957 confirmation hearing.)  “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty” (id.).  As I understand them, then, Garvey and Bennett do not believe that an “orthodox” Catholic judge may act immorally with respect to abortion or the death penalty, even when her judicial oath would require it.  

5.   Yet Neither May a Catholic Judge (Nor Any Other Judge) Allow Her Religious Views to Affect Her Decision in a Case

Just as importantly, however, Barrett also insists that a Catholic judge (or any other judge, for that matter) may not breach her civil duty to call the law as she sees it by conforming her decision to her religious views or obligations.  This statement from her 2017 confirmation hearing is wholly consistent with what she wrote in 1998:
I continue to stand and vehemently believe the core proposition of that article, which is that if there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires.  That article emphasized that point repeatedly.  And I adhere to that today.
According to Barrett and Garvey (p.350), “[j]udges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”[1]   Catholic judges should, instead, “conform their own behavior to the Church’s standard,” in hopes that “[p]erhaps their good example will have some effect.”

6.  If a Catholic Judge’s “Material Cooperation with Evil” in Upholding a Death Penalty or a Woman’s Right to Choose Would Itself be Morally Impermissible, then that Judge Must Recuse Herself from the Case

So if an “orthodox” or “observant” Catholic judge such as Judge Barrett—one who’s “faithful to the teaching of [the Church]”—isn’t permitted to allow the Church’s teaching to affect her decision-making, and if her involvement in a case threatens to require her to engage in morally impermissible “material cooperation with evil,” how then, can she “conform [her] own behavior to the Church’s standard” in such a case?

By recusing from the case.  That’s the central and most important conclusion in the Barrett/Garvey article.  “If one cannot in conscience affirm a death sentence the proper response is to recuse oneself”—and that manner of resolving the conflict, they added, is even “easier” with respect to an abortion case (p.343 & n.159).[2] 

In this respect, Barrett’s view is very similar to what Justice Scalia expressed two years after Barrett clerked for him.[3]   Indeed, Scalia’s view required an even more extreme remedy:  If a Catholic appellate judge agrees with the Church’s teaching that the death penalty is immoral, wrote Scalia, it would be “hard to see” how his involvement in a death case wouldn’t be impermissible material cooperation, and therefore “in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases.”  (Scalia himself didn’t resign, he explained, only because—unlike Barrett—he rejected the Church’s view on the morality of the death penalty.  Scalia didn’t explain in the 2002 essay why his acceptance of the Church’s view on the moral impermissibility of abortion didn’t require his resignation—or, at the very least, his recusal from abortion cases.)

Barrett and Garvey didn’t go as far as Scalia—for them, recusal in abortion and death penalty cases would be sufficient, at least for the court of appeals judge who could simply be replaced on the panel by another judge.[4] 

But even that remedy of recusal is only necessary, according to Barrett and Garvey, if the judge’s affirmance of the state’s power to impose the death penalty, or a woman’s right to terminate a pregnancy, would be a morally impermissible form of material cooperation with evil.  

* * * *

That much about Barrett’s views is, I think, clear—assuming, of course, that she still adheres to the views she expressed in 1998.

But then, when it comes to the final question, things get hazier, and more confusing.  What, exactly, is Judge Barrett’s view about when, if at all, an appellate judge’s material cooperation with the evil of the death penalty or abortion would be impermissible, thereby requiring recusal for the orthodox Catholic judge?  

Material cooperation with evil, Barrett and Garvey explain (p.319), “is only sometimes immoral.”  Its permissibility is judged, under Catholic theology, “by a kind of moral balancing test—weighing the importance of doing the act against the gravity of the evil, its proximity, the certainty that one’s act will contribute to it, and the danger of scandal to others.”

This balance may come out very differently depending on the role the appellate judge is playing in the particular case.  See p.326 (the appellate judge “plays a variety of roles, and some of them present more difficult moral questions than others”).  If, for example, the judge only reviews the merits of the conviction in a capital case, and doesn’t opine at all on the sentence, her material cooperation in the subsequent execution isn’t likely to be morally impermissible (pp. 326-327).  And perhaps—though it’s a closer case—if the appellate panel is merely reviewing whether the sentencing jury or judge acted within its discretion in evaluating particular facts germane to the question of whether the death penalty was warranted in a particular case, the appellate judges’ decision to affirm the judgment below (i.e., its material cooperation in the execution) isn’t morally prohibited, because the judges on the panel would reasonably be understood merely as concluding that some other party didn’t abuse its capacious discretion, notwithstanding that the appellate judges obviously had “some room to affect the defendant’s fate” (p.327). 

Nevertheless, even in this ordinary “review of facts” appellate situation—more common for a court of appeals than for the Supreme Court—Barrett and Garvey warned that the answer under Catholic doctrine is uncertain because “[w]hatever might be the legal significance of an affirmance, it probably looks to most people like an endorsement of the sentence,” which “can cause scandal, leading others into sin”:
“Sometimes the fact that ‘good’ people are involved makes wrongdoing seem not so wrong and provides material for rationalization and self-deception by people tempted to undertake the same sort of wrong....  [O]ften the material cooperation of ‘good’ people in wrongdoing leads others to cooperate in it formally.”  [pp. 328-329 (quoting Germain Grisez, 2 The Way of the Lord Jesus:  Living a Christian Life 881 (1993))]
“Considerations like this,” they concluded (p.329), “make it exceedingly difficult to pass moral judgment on the appellate review of sentencing.”

If such judgments are exceedingly difficult even in the ordinary appellate case involving review of a specific sentence of death in an individual case, surely the balance tips much more strongly towards the moral impermissibility in the context of most Supreme Court cases involving the death penalty or abortion, because in those cases the Court is making far more sweeping, more momentous decisions about a much broader “Question Presented”—viz., whether states may put defendants to death, or whether women have a constitutional right to terminate a pregnancy, in a whole category of cases.  And, as Barrett and Garvey acknowledge (p.331), “we all know that judicial review [of this sort] is not a mechanical process, that there is a lot of room [for the judge] to maneuver.”  At a minimum, then, I’d think there’d be a much higher likelihood of “scandal”—of “provid[ing] material for rationalization and self-deception by people tempted to undertake the same sort of wrong”—when the Court decides that the Eighth Amendment doesn’t limit the states’ authority to execute certain defendants, or when it decides that the Fourteenth Amendment does prohibit states from restricting abortions in particular ways.  As Mark Tushnet puts the point in the context of abortion:  “[T]he issue of scandal may be quite serious here:  Others who see an orthodox Catholic judge affirming Roe v. Wade might conclude that abortion is not all that wrong.  After all, if even such a judge can go along with a decision allowing abortions, how wrong could it be?”

Say, for example, that the Supreme Court decides in a particular case that states may not restrict abortions of a particular or under particular circumstances—or, of even greater significance, if it decides that Roe and Casey should not be overruled.  As Justice Scalia himself pointedly complained in his dissent in Casey, such a ruling (he was referring to Roe itself) “create[s] a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act.”  Observers of the decision, he explained, might come away thinking:  “If the Constitution guarantees abortion, how can it be bad?”—a “natural” line of thought, Scalia explained, whether or not it would be an “accurate” one. 

Because of this probable effect, it’s very likely—at least as I read the Barrett/Garvey article and other sources describing the Catholic doctrines of “material cooperation” and “scandal”—that adherence to Catholic moral doctrine would require a faithful Catholic judge such as Judge Barrett to recuse from at least some important cases in which her court is asked to assess the constitutionality of abortion and death penalty statutes and practices.  

Justice Scalia thought likewise:  As he wrote in 2002, where “the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law,” in theory such material cooperation with evil wouldn’t be morally proscribed.  But that could only be so, he continued, where “the good deriving from the cooperation exceed the evil which is assisted,” and “I find it hard to see how any appellate judge could find this condition to be met.” 

Indeed, the case for the moral impermissibility of the appellate judge’s material cooperation in this context is far more compelling—by many orders of magnitude—than the claims of prohibited moral complicity that many Catholic institutions, including Notre Dame University, asserted in the Zubik and Little Sisters litigation involving their highly attenuated (at best) association with, or responsibility for, their employees’ use of contraception under the Obama Administration’s ACA “contraceptive coverage” rule “accommodation.”  

Here’s the rub, however:  In her 2017 confirmation hearing, Judge Barrett insisted that if she were confirmed to the court of appeals, she’d virtually always proceed to “decide cases according to rule of law, beginning to end.”  To be sure, she acknowledged that she would have no choice but to recuse in the “rare circumstance” where “I felt that I had some conscientious objection to the law.”  She added, however, that she “couldn’t imagine … any class of cases or category of cases on which I would feel obliged to recuse on grounds of conscience.”  She added that when she was a law clerk to Justice Scalia, she “routinely participated in capital cases, and there were many of them.”

That example, however, doesn’t really explain her doubts about recusal.  Soon after she clerked for him, Justice Scalia explained that he was only able to participate in such capital cases—rather than resigning from the bench—because he disagreed with the Church’s assessment of the morality of capital punishment.  That doesn’t explain why Judge Barrett—who presumably follows the Church’s teachings—also “routinely participated” in such cases.  (Nor does it explain why Justice Scalia himself participated in abortion cases while he was on the Court.)  

More recently, Judge Barrett twice participated where the U.S. Court of Appeals for the Seventh Circuit considered whether to go en banc to decide whether Indiana could constitutionally implement particular statutory abortion restrictions—prohibiting abortions performed because of the sex, race, or disabilities of a child; requiring fetal remains to be cremated or buried; and requiring that parents be notified before pregnant, unemancipated minors could obtain abortions without parental consent.  See Planned Parenthood v. Commissioner, 917 F.3d 532 (7th Cir. 2018); Planned Parenthood of Indiana and Kentucky v. Box, 949 F.3d 997 (7th Cir. 2019).  In both cases, Judge Barrett voted to grant the en banc petition—in favor of the full court’s reconsideration of whether to lift injunctions against the laws.  (In both cases, the court majority voted to deny the en banc petitions.)

It’s not evident to me why Judge Barrett wasn’t compelled—not by judicial ethics rules but by her own religious commitments—to recuse from those cases, given that any decisions of the en banc court to prohibit Indiana from applying those laws (i) would (according to Catholic teachings) be a form of material cooperation with evil and (ii) would appear to be of very dubious permissibility under Catholic doctrine—particularly because of the risk of “scandal” if prominent Catholic jurists such as Judge Barrett were to vote to protect women’s right to choose in those cases.

What might explain Judge Barrett’s participation in these cases, and her statement in 2017 (which I assume she’ll repeat this week) that she can’t conceive of “any class of cases or category of cases on which I would feel obliged to recuse on grounds of conscience”?  

I can imagine at least three possible responses, but none of them seems very compelling:

• The first possible reason for nonrecusal is suggested in the Garvey/Barrett article itself with respect to the death penalty (pp. 330-331):  Because “a judge cannot just casually strike down laws enacted by democratically elected officials,” they wrote, a holding by an appellate judge that the Eighth Amendment doesn’t forbid capital punishment in particular circumstances is “not equivalent to enforcing or approving” what the legislature has done—it’s merely to opine that the Constitution doesn’t stand in the way.  The “real responsibility” for the execution, therefore, lies not with the appellate court that declines to intervene, but instead with the legislature that wrote the law, with the executive who signed it, with the prosecutor who invoked it, and with the judge and jury who imposed the sentence. 

There are a couple of significant problems with this possible explanation, however.  First, it’s simply not descriptively accurate about the practice or popular understanding of judicial review of the constitutionality of statutes.  To be sure, the Court occasionally gives lip service to the notion that there’s a strong presumption against judicial “invalidation” of democratically enacted laws—and that the courts should afford legislatures substantial deference.  But that hasn’t been a fair description of practice for a long time, especially with regard to state statutes (which will much more frequently be at issue in the Supreme Court’s abortion and death penalty cases): the current Court isn’t at all hesitant to strike down legislation.  Moreover, Barrett and Garvey themselves acknowledged that “we all know that judicial review is not a mechanical process” and that “there is a lot of room to maneuver” for a “determined judge” (p.331).  No one seriously believes judges lack any substantial leeway to resolve cases in these areas in either direction, or that the plain text of the Eighth and Fourteenth Amendments points inexorably toward one resolution or the other.  And when it comes to the question of whether the Court should overrule precedents (such as Roe and Casey in the context of abortion, or Gregg v. Georgia on the question of whether the Eighth Amendment prohibits all capital punishments), no one would reasonably conclude that the Justices aren’t significantly responsible for the Court’s decision because the law allegedly tied their hands.  (Moreover, I’d be very surprised if a Justice Barrett exercises extraordinary “judicial restraint,” rather than voting to impose constitutional constraints on legislatures in many contexts.)

For all of these reasons, and more, a reasonable observer—and, more importantly, most of the public—would understand the Court to be approving the legitimacy of the death penalty in most cases where it turns aside constitutional challenges.  Therefore, such a decision would at a minimum implicate the doctrine of “scandal” that an orthodox (or “observant”) Catholic jurist must avoid.

Second, this response about deference to legislatures doesn’t fit very well when it comes to abortion cases, in which the moral dilemma for the Catholic jurist arises not because the court might—in deference to the legislature—decline to enforce a constitutional limit on morally objectionable state conduct, but instead because that judge might enforce the Fourteenth Amendment to invalidate a state law and thereby secure women’s ability to terminate pregnancies. 

• The second possible explanation for Judge Barrett’s “I’ll probably never have to recuse” response is that because an appellate judge wouldn’t know, at the outset of a case, whether she might vote to allow the death penalty, or to secure abortion rights, there’d be no need for her to recuse unless or until she’s on the verge of casting such a vote, which would be after the case has been briefed and argued and opinions have been circulated within the court—something that might never happen.

As I explain in footnote 2 above, however, the Garvey/Barrett article is best read to argue that where a judge’s vote for one side of the case would involve prohibited material cooperation with evil, the faithful Catholic judge must recuse at the outset of the case, before she knows whether her vote would result in facilitating the immoral action (e.g., by permitting the state to execute a defendant or by ruling that the Constitution protects a woman’s right to abort a pregnancy).  They explain, for example (pp. 322-324) that a trial judge could not ethically engage in even the process of evaluating whether a defendant should receive the death penalty if an affirmative answer to that inquiry would be morally prohibited.  That surely must be correct, for at least two reasons that Ed Hartnett has helpfully explicated:  First, such a “wait and see,” “one-way” recusal practice would be “incredibly inefficient and burdensome”—indeed, an administrative nightmare on a multi-member court—which is why it never happens.  Moreover, if a judge only recused in those cases where he or she decided at the end of the process to allow the death penalty or to protect a woman’s ability to have an abortion, that would reasonably call into question the judge’s impartiality, which is a sufficient reason for recusal at the outset under ordinary judicial ethics standards.

• The third and final possible explanation for Judge Barrett’s insistence that she can’t imagine any class of cases “on which I would feel obliged to recuse on grounds of conscience” is that perhaps she knows that in fact she’ll never actually cast a vote that would result in scandal or otherwise be morally impermissible.  As one friend of mine hypothesized, perhaps she reasons to herself something along these lines:  “I’ve strongly believed since law school, and even more so since my clerkship with Justice Scalia, that Roe and Casey were wrongly decided; and thus I’m certain that I’ll never vote to declare an abortion restriction invalid and that I’ll vote to overrule Roe and Casey at the earliest opportunity.  Therefore there’s simply no conceivable chance that I’ll engage in impermissible material cooperation with evil.”

That can’t be the basis for Judge Barrett’s skepticism about the need for recusal, however.  For one thing, it doesn’t explain why she wouldn’t have to recuse in death penalty cases, where (presumably) she believes that the Constitution doesn’t prohibit the sinful conduct.  

Moreover, Judge Barrett can’t possibly acknowledge—not publicly, at least—that her mind is already inexorably settled on all questions regarding the constitutionality of abortion regulations, including whether and when the Court should overrule Roe and Casey.  To be sure, she might have strong predispositions about such questions.  Even so, presumably she would insist that she'd make up her mind on such cases—particularly on the big-ticket question of Roe's and Casey’s future, and if and when the Court should overrule those precedents—only after carefully considering all of the arguments in the briefs, after consulting with her fellow Justices, and after seeing how the competing opinions “write.” 

* * * *

Because these possible explanations aren’t satisfactory, I remain uncertain about why Judge Barrett is so confident that her religious commitments will never require her to recuse in any cases, given what she argued in her article with Dean Garvey.  As I wrote at the outset of this post, I think it’s probably not a very good idea for Senators to try to get to the bottom of this question in the hearings this week.  Even so, I hope that Judge (or Justice) Barrett has further occasion to write about the subject someday, so that perhaps we can better understand how her understanding of Catholic religious obligations concerning material cooperation applies to the role of an appellate judge confronted with weighty moral questions about conduct that the Church deems to be morally indefensible, such as abortion and the death penalty.


[1]  At her 2017 confirmation hearing, Barrett emphasized that “as a judge, I would decide cases according to rule of law, beginning to end.”  That sort of unequivocal statement is also reflected in Garvey and Barrett’s 1998 article, in which they argued that a judge may not even try to stretch the law in order to prevent immoral state action, as Bob Cover had implored judges to do under certain extreme circumstances.  Cover suggested that when the governing law systematically sanctions morally indefensible conduct (Cover was writing about cases challenging aspects of the Vietnam War), a judge should interpret the law to conform to his conscience even if that requires “the disregard or stretching of authority,” assuming that the argument in question is “at least plausible even if unsupported by precedent.”  I have my doubts whether such actions would necessarily “undermin[e] the legal system,” as Barrett and Garvey assumed—consider, for example, the case of antebellum judges adjudicating Fugitive Slave Act cases, the subject of Cover’s masterpiece Justice Accused.  Thankfully, though, resolving that fraught question isn’t necessary for present purposes.  

[2]  As I read the Garvey/Barrett article, the judge would have to recuse at the outset of the case, before she knows whether her vote would result in facilitating the immoral action (e.g., by permitting the state to execute a defendant or by ruling that the Constitution protects a woman’s right to abort a pregnancy).  See, e.g., pp. 322-324 (explaining why a trial judge could not ethically engage in even the process of evaluating whether a defendant should receive the death penalty if an affirmative answer would be morally prohibited).  Ed Hartnett has a helpful discussion about why such a “one-way recusal” practice would be “incredibly inefficient and burdensome,” and why it would also reasonably call into question the judge’s impartiality if he or she only recused in those cases where the judge decided at the end of the process to allow the death penalty or an abortion.

[3]  It’s also consistent with a largely forgotten passage in John F. Kennedy’s famous September 1960 speech:  “[I]f the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.”

[4]  I’m speculating here, but perhaps Justice Scalia assumed that resignation, rather than recusal, is required for a Supreme Court Justice who believes the death penalty is immoral because it would be an abdication of professional responsibility for a Justice to recuse in every case involving capital punishment, thereby leaving an eight-Justice Court for a significant chunk of the docket.

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