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Amy Coney Barrett Should Recuse Herself on Abortion Cases

Noah Feldman
·5-min read

(Bloomberg Opinion) -- Judge Amy Coney Barrett has expressed the highly unusual view that judges should recuse themselves when a case might require them to act against conscience and violate Catholic Church teaching. On its own, the view is defensible. But it carries an important implication, one that Barrett hasn’t addressed: that Barrett should recuse herself from any case involving abortion rights regardless of how she would rule.

To understand this argument, you have to begin with how unusual Barrett’s view is. Most judges and judicial nominees take the view that their religious beliefs are irrelevant to the job of judging. The strongest formulation echoes that of Thomas Jefferson, who wrote in his Bill for Establishing Religious Freedom “that our civil rights have no dependence on our religious opinions, any more than on our opinions in physics or geometry.”

But in a 1998 article that she wrote with John Garvey, then the dean of Boston College Law School, Barrett rejected this strong separation between religious faith and judging. Barrett and Garvey argued that Catholic teaching prohibits believers from “cooperating with evil.” From this premise they concluded that Catholic judges shouldn’t participate in cases where they might have to impose the death penalty, which is itself condemned by authoritative Catholic doctrine outside of a few extreme circumstances.

On its own, this view has some merit. Recusal decisions are governed by a federal statute, which says, among other things, that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Supreme Court justices themselves are the sole judges of their own decisions.)

If a judge or justice of faith can’t reach a certain outcome — like the application of the death penalty — without violating conscience, then his or her impartiality could “reasonably be questioned.” In other words, the statute could cover a Catholic judge who is against the death penalty.

But that should be the beginning of the analysis, not the end. If recusal is proper where the judge might have to violate Catholic teaching, then recusal is also appropriate in any case where one possible outcome could violate Catholic teaching, no matter which way the judge might decide it. It makes no sense for a judge to recuse herself only if she might have to decide the case against her conscience, because then she is putting a thumb on the scale in favor of deciding in keeping with her religious beliefs. That’s not impartial — it is, in effect, a pre-judging of the case.

Consider a judge who won’t apply the death penalty but is pretty sure a particular defendant doesn’t deserve capital punishment under the law. That judge should recuse herself from capital cases. Her judgment isn’t neutral: To be consistent with her faith, she can decline to sentence a defendant to death, but she can’t administer the death sentence. She isn’t impartial.

Now consider a justice asked to rule on the constitutionality of the right to abortion. Assume she believes abortion to be murder – just as morally wrong as the death penalty. As a matter of authoritative Catholic teaching, it could be argued, the justice cannot cooperate with evil by voting to uphold the abortion right.

Nothing in Barrett and Garvey’s article expressly addresses this situation. But the logic of the article strongly suggests that the justice should recuse herself from the abortion case altogether. If she cannot in conscience rule for the abortion right, then she is not impartial. Her options are limited by her conscience. She can come out only one way on the case, consistent with conscience. The statute’s recusal rule covers her situation.

In their article, Barrett and Garvey do leave a little wiggle room. They say that appellate judges are in a slightly different situation from trial judges when it comes to the death penalty, because technically, the appellate judge doesn’t directly order a death but rather either affirms the sentence or else reverses it and remands to the lower court for reconsideration. The same logic could perhaps be applied to the Supreme Court in the abortion situation, since the court doesn’t order women to have abortions, but merely states they have a right to obtain them if they so choose.

Yet this distinction is not especially satisfying. Finding a federal abortion right could lead to abortions actually happening. That seems like cooperation in the ordinary sense of the word, even if it may not fulfill a technical definition of cooperation deployed by Church teaching. What’s more, the justice’s impartiality could be reasonably questioned so long as it is reasonable to see a vote for abortion rights as a form of cooperation with evil.

Of course, in reality, some women will get abortions even if abortion is illegal. Some 800,000 illegal abortions a year took place before Roe, when abortion was legal in some states and not others. But the issue for an observant Catholic judge isn’t the costs and benefits of her judgment. It’s whether her decision will amount to cooperation with an act she considers immoral.

Given the combination of grandstanding and stonewalling that confirmation hearings always produce, it’s unlikely that Barrett would have even answered a question as to whether, by her own logic, she should recuse herself from all abortion-related decisions. But more important, as a person of conscience, she should be asking that question of herself.

It cannot be the case that justices should only recuse themselves from outcomes that would violate their consciences. Recusal must go both ways — or else justice will be skewed.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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