Acknowledging religious bias is essential to a neutral judiciary

By Julia Guerrein, Editor-in-Chief

The recent judicial hearings and confirmation of now-Justice Amy Coney Barrett put the importance of a justice’s personal views on full display.

Repeatedly throughout the hearings, Barrett made it clear that she would decide cases independently of her personal beliefs. During the hearings, Barrett said, “Judges cannot just wake up one day and say, ‘I have an agenda—I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world.”

Justice Antonin Scalia, one of Barrett’s mentors, was a devout Catholic and was quoted in an interview stating, “I don’t think there’s any such thing as a Catholic judge.” He continued, “The only article in faith that plays any part in my judging is the commandment ‘Thou Shalt Not Lie.'” For example, Scalia explained that his faith played no role in determining whether he thought the Constitution guaranteed a woman’s right to an abortion.

Although I think that Barrett sincerely believes, like her mentor Scalia believed, that she can leave her personal views at the doors of the Supreme Court, this is untrue. Both Scalia and Barrett were raised religious, and religion was and is a fundamental part of their identities and daily lives. To act as if something so fundamental to who they are and how they live their lives could be left outside of their decisions is unrealistic.

In 1998, Barrett co-authored a law review piece with her then-law professor John Garvey titled “Catholic Judges in Capital Cases.” She was a law student at the time and opponents of her confirmation for both the Seventh Circuit and the SCOTUS touted it as a reason to preclude her from serving as a judge/justice.

Like Garvey explains in an opinion piece in the Washington Post, the article argued that judges may recuse themselves if their personal beliefs conflict so severely with their judicial duties as to make the judge incapable of impartiality. The authors concluded that a judge has sufficient reason to recuse themselves from a capital case if they follow the Catholic Church’s teaching that the death penalty is immoral. This is because the judge would find it against their religious beliefs to sentence criminals to death or enforce a jury recommendation of death.

The concept presented by Barrett and Garvey’s article is fairly simple – at least at face value. Although they do not apply this principle to other issues, the potential for religious beliefs to influence a judge or justice’s judicial reasoning also applies to abortion rights, the separation of church and state, marriage equality, and more.

In an article published as part of the same symposium as Barrett and Garvey’s article, the authors Thomas Berg and William Ross traveled through SCOTUS history to look at justices’ religious beliefs. When discussing recent SCOTUS history (as of 1998 when the article was published), Berg and Ross looked closely at Justices Scalia and Thomas because of their well-known religious beliefs.

Berg and Ross observed that “[Scalia and Thomas] reject abortion rights, homosexual rights, and the right to euthanasia and favor permitting a greater role for majoritarian religion in public activities.” They go on to hypothesize why this could be the case. One explanation could be that religion influences a person’s world view. Additionally, Scalia and Thomas are known for their adherence to tradition in deciding cases—which sometimes includes traditional religious teachings or how religion has historically been treated in American society.

Taking this idea a step further, a 2004 article in the Ohio State Law Journal analyzed federal circuit and district judges by comparing their religious beliefs to their rulings on religious freedom cases.

“Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior,” stated the article.

To be clear, none of these sources states or implies that judges or justices abandon their judicial roles in order to curate the law to their liking. These sources acknowledge the reality that judges and justices do not erase their experiences and deeply held beliefs when they enter the courtroom; rather, their beliefs—as with any other human being—influence their decisions. Instead of judges and justices claiming to leave their biases behind, they should acknowledge their biases and actively question themselves while making decisions. Barrett is incapable of leaving her religious beliefs out of judicial decision-making—just like every other jurist before and after her.

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