Photograph by Patrick Semansky / AP / Shutterstock
Inaugural post by the newest member of the Cornerstone Team, our General Counsel & Director of Policy, Ian Huyett, Esq. You can read more about Ian and connect with him here.
On Monday, the church in America witnessed a rare triumph: an outspoken Christian confirmed to the Supreme Court. Christians who do not closely follow the Court might not appreciate just how extraordinary this fact is—and how fortunate we are to have such an inspiring Christian jurist on the bench. Yet we must also appreciate, and pray for, the difficult and volatile situation in which Justice Barrett now finds herself.
The Court is a uniquely republican institution.
As a lawyer and an avid Supreme Court-watcher, I’ve never shared the animosity that many conservatives have towards the high court. While the Court is imperfect, and often makes decisions I disagree with, it also embodies everything that I love about our republican system of government.
In Supreme Court oral arguments, hotheads are expected to conduct themselves with civility. The justices treat one another, and the litigants, with courtesy. Even the most controversial and loathed litigants are given a fair hearing—and often win.
While parties before the Court are forcefully challenged, they are challenged with rational arguments—not shrieking denunciations. There are no senators clamoring over each other to posture for their campaign donors. The Supreme Court and Congress could hardly be more different.
At the same time, the Court is the most secular of our three branches of government.
One deficiency in the Court, though, has always bothered me: the conspicuous absence of Christians—and religious believers in general—from the bench. Since John Jay’s tenure as Chief Justice ended in 1795, outspoken Christians on the Court have been exceedingly rare.
The average Supreme Court justice usually has some nominal denominational identity—for example, a justice might call himself “a Presbyterian” because he was baptized in a Presbyterian church—but no other signs of religious interest or devotion in his life. This leaves Christians and other religious believers who feel called to a legal career with few models to look to for inspiration.
In fact, avowed atheists have served on the Court since at least 1902. One of the Court’s most famous justices, Oliver Wendell Holmes—who retired from the bench in 1930—was an outspoken nihilist, with beliefs similar to those of his contemporary Friedrich Nietzsche. Holmes believed that there was no truth or goodness outside of his own individual will. “Do you like sugar in your coffee, or don’t you? … So as to truth,” he said. For Holmes, good and evil do not exist: these terms simply refer to “the world I want; the kind of world we all try to make according to our power.”
Some might cite the late Antonin Scalia as an example of a religious believer on the Court. While Scalia liked attending Latin Mass, however, he otherwise had little interest in religion. Scalia saw Christianity as a strictly private matter of the heart, which should not spill over into the rest of human life. He once claimed that the Bible should have no influence on how a Christian votes, “anymore than he ought to choose his toothpaste on that basis.” Although he was a great jurist and writer, Scalia does not provide believers with a model for integrating their faith and the law.
Justice Amy Coney Barrett is the best representative the church could have asked for.
Amy Coney Barrett first came to the attention of many Christians during her 2017 confirmation to the federal bench, when Senate Democrats attacked her over her Christian faith. “The dogma lives loudly within you,” Dianne Feinstein famously told her.
Dick Durbin, a self-described Catholic, took umbrage with the use of the phrase “orthodox Catholic” in Judge Barrett’s writing, believing that the term was a criticism of liberal Catholics like himself. “I am a product of 19 years of Catholic education,” Durbin boasted. Ironically, Durbin pronounced the term “arthurdox Catholic.”
Barrett—who was once Justice Scalia’s judicial law clerk—had already eclipsed her mentor. Where Scalia believed that faith should be kept under a bushel basket, Barrett’s shines on a lamp stand.
During her recent confirmation hearing, however, Barrett was distinguished—not by the Democrats’ attacks on her—but by her own competence and godliness. Barrett faced many questions from Senate Democrats that were cleverly-designed tricks, intended to ensnare and embarrass her rather than elicit information about her views. Yet Barrett glided untouched through hours of questioning. To watch her Senate hearings was to be impressed.
Barrett, like Chief Justice Roberts, seems to be a diplomat and a peacemaker. Conservatives who expect her to be a rabble-rouser will, I think, be disappointed. What I do think we can expect is that Justice Barrett will continue to be intelligent, articulate, kind, good-humored, and fair. Christians of all denominational backgrounds can scarcely have asked for a better representative and role model on our nation’s highest court. And President Trump likely cannot have picked a better jurist to join the Court at this dire hour in our nation’s history.
Justice Barrett may face tremendous challenges in the months ahead.
In the hours leading up to Barrett’s confirmation—while conservatives were celebrating— Democrats such as Ed Markey of Massachusetts were cranking up their bigoted and hateful denunciations of Barrett and conservatives in general. Markey and others are part of a growing chorus of Democrats calling to expand the Supreme Court so that Democrats can seize political control of it.
In over 230 years of constitutional government, nobody has ever expanded the Court to take political control of the bench. If Joe Biden and his allies follow through on this threat, they will permanently abolish constitutional government and the concept of federal constitutional rights. If this comes to pass, everything that I love about the Supreme Court will become a memory—and Justice Barrett’s confirmation will be the bittersweet last hurrah of a judiciary that will become defunct, irrelevant, and illegitimate.
Conservatives who are expecting that Barrett will overturn Roe v. Wade, I think, do not appreciate the gravity of the situation. Roe, in my personal opinion as a Court-watcher, is not on the table. But if Democrats stage a coup by expanding the Court, then basic constitutional rights like the First Amendment will certainly be on the table.
This is the danger that I believe Chief Justice John Roberts has been seeking to avoid through his careful negotiations over the last several years. And confronting this danger may now be the task of Justice Barrett.
I pray that Justice Barrett would continue to be a shining example of what a Christian jurist should look like, and am thankful that she serves the Lord of whom Isaiah wrote: “the government shall be upon his shoulder, and his name shall be called Wonderful Counselor.”