It’s not often that we get to see history being made, but that’s what happened Saturday afternoon when President Trump nominated Judge Amy Coney Barrett for the Supreme Court of the United States.
Any nomination to our nation’s highest court is historic. If confirmed, Judge Barrett will become only the 115th person in American history to sit on this court and only the fifth woman. Moreover, she will be the first person with school-age children to serve.
But what most concerns opponents of the president’s nomination is another historic fact: she would give the court a six-to-three conservative majority by replacing Justice Ruth Bader Ginsburg, long considered the leader of the liberal faction of the court. This could be crucial with upcoming cases on the Affordable Care Act, abortion restrictions, and perhaps the 2020 presidential election.
Much has already been said in opposition to this outcome. Today, I’d like to explain why this opposition is so heated and what it means for every evangelical in America today.
“A brilliant and conscientious lawyer”
Judge Amy Coney Barrett’s judicial qualifications to serve on the court are beyond dispute. Harvard law professor Noah Feldman, a self-described liberal who is “devastated” over Justice Ginsburg’s death and “revolted by the hypocrisy” of considering the president’s nomination, nonetheless writes: “I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.”
He explains: “I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.”
If a self-described liberal would endorse Judge Barrett in such strong terms, why is opposition to her nomination mounting so quickly? Their problem lies not with her capacities or qualifications, but with her faith.
“The dogma lives loudly within you”
Friday night, HBO’s Bill Maher called her a “****ing nut” and said she was “Catholic—really Catholic. I mean really, really Catholic—like speaking in tongues.” Although Justice Ruth Bader Ginsburg was deeply influenced by her Jewish faith, such faith was acceptable to Maher and those like him since they shared her liberal worldview.
In 2018, Sen. Mazie Hirono (D-Hawaii) confronted Brian Buescher, a nominee to the US district court in Nebraska, over his membership in the Knights of Columbus, a faith-based service organization that supports traditional Catholic positions on marriage, abortion, and human sexuality. The senator asked if the nominee would terminate his membership in this organization since it had taken “a number of extreme positions” on social issues including abortion and marriage.
When Amy Coney Barrett was nominated for the Seventh Circuit Court in 2017, Senator Dianne Feinstein (D-California) stated, “Whatever a religion is, it has its own dogma. The law is totally different. And I think in your case . . . the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to the big issues that large numbers of people have fought for for years in this country.”
The senator added: “Over time, we learn to also judge what they think, and whether their thoughts enable them to be free to observe the law.”
The senator’s statement crystallized the problem I’m addressing today.
“A judge must apply the law as written”
Following the president’s announcement Saturday, Judge Barrett stated: “I clerked for Justice Scalia more than twenty years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
This is known as “originalism,” the theory that “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Justice Ginsburg, by contrast, was a staunch advocate of the “living” Constitution theory, which holds that the meaning of the text changes over time as social attitudes change.
Originalists focus not on what “they think” (to quote Sen. Feinstein) but on what the law says. This is why Judge Barrett’s personal Catholic beliefs on issues such as abortion and same-sex marriage should be irrelevant during her confirmation hearing since they have no bearing on decisions based strictly on the law as it currently exists.
The fact that her beliefs have been and will be attacked says more about her attackers than it does about her. They clearly would judge based not on the original meaning of the Constitution but according to their personal beliefs. Here we find the larger problem in our culture: we now live in a postmodern culture in which all truth, whether found in the US Constitution or claimed by your neighbor, is deemed personal and subjective.
This is why the Supreme Court has become so legislative in the postmodern era, making laws Congress did not enact when the unelected justices discovered “rights” to abortion and same-sex marriage that are clearly not in the text of the Constitution. And it is why critics of unchanging biblical morality are becoming more vociferous in their opposition with each passing day.
“Holding fast to the word of life”
We will have reason to say much more about the debate over truth as Judge Barrett’s confirmation process moves forward. For today, let’s deepen our resolve to obey and share the word of God, remembering the psalmist’s prayer that “the sum of your word is truth, and every one of your righteous rules endures forever” (Psalm 119:160).
Let’s intercede for those who consider Judge Barrett’s nomination, praying that they conduct themselves with the decorum and civility befitting their positions and that the hearings do not further fracture our divided culture. And let’s pray for Judge Barrett to manifest the character of Christ (Romans 8:29) and the fruit of the Spirit (Galatians 5:22–23) as she faces intense scrutiny and global attention.
“Holding fast to the word of life” is our mission and should be our mantra (Philippians 2:16). Is it yours today?