In 2017, Amy Coney Barrett was confirmed to the 7th District Court of Appeals by the Senate. During her confirmation process, she was questioned by Senate Democrats about the role of her Catholic faith in her judging, inferring that it might unfairly bias or influence her to rule one way or the other. Later in the hearing, Senator Diane Feinstein said to her,
Why is it that so many of us on this side have this very uncomfortable feeling that—you know—dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when we read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues which large numbers of people have fought for for years in this country.
Dr. Barrett responded to this line of questioning by saying,
Senator, I see no conflict between having a sincerely held faith and duties as a judge. In fact, we have many judges, both state and federal across the country, who have sincerely held religious views and still impartially and honestly discharged their obligations as a judge, and were I confirmed as a judge, I would decide cases according to the rule of law, beginning to end. And in the rare circumstance that might ever arise…where I felt that I had some conscientious objection to the law, I would recuse. I would never impose my own personal convictions upon the law.
Since then, she was confirmed and served for four years in the 7th Circuit Court of Appeals until she was appointed by President Trump to fill the seat of the late Ruth Bader Ginsburg. On October 26, 2020, she was confirmed by the Senate to the Supreme court.
In light of this, Christians may wonder whether this line of questioning by Senator Feinstein is fair or whether Amy Coney Barrett’s response is completely correct. To what extent should a person’s faith be allowed to inform their judgments? To what extent should it determine a judge’s decisions?
There are some political considerations we must make in answering this question.
Primarily, we have to recognize that judges are different from legislators. Legislators are in the business of creating laws. To do this, they draw from reason, from science, and also from their own moral principles (often informed by their faith). It’s unavoidable that their faith or moral principles influence how they approach the writing of laws because that is an inherently moral undertaking. Judges, on the other hand, are not intended to create laws, but to interpret its meaning and apply the law faithfully. They seek to set aside their own personal biases in order to read the law as written and objectively apply it. Now, to be fair, when a law is ambiguous or open to interpretation, although they might strive for objectivity, some level of personal judgment could enter into the picture where they draw upon their own values and the values of the American judicial system.
Justice Barrett, in her swearing-in ceremony to the Supreme Court, echoed this principle, saying,
The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is the role of policy preferences. It is the job of the senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence not only from Congress and the President but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty: the rule of law must always control.
This is how our judicial system is intended to function. Judges are to go by what the law or the Constitution actually says, not what they wish it would say or think it should say. To do so would be to read their own personal values into the law. In other words, reading one’s own personal values into the law causes judges to legislate rather than judge.
The Bible is adamant that genuine faith will have very real and tangible effects on our lives, including our actions (James 2:26) and our morals/worldview (Romans 12:2). No person is without a worldview that will inform these aspects of their lives. Thus, it is unreasonable to expect that a person’s values would not affect their lives, decisions, or judgments, whether they are religious or secular.
In the Old Testament, judges were appointed to weigh various matters or settle a dispute. These judges presided over a people in a covenant relationship with God using a law given by God himself. Thus, judges are told, “Consider what you do, for you judge not for man but for the LORD. He is with you in giving judgment.” (2 Chronicles 19:6-7). Ultimately, judges were expected to judge impartially according to God’s law (Leviticus 19:15, 35; Deuteronomy 1:17). At the same time, the law was not exhaustive. There would be situations that would arise which are not specifically mentioned in the law. The judge, therefore, would have to apply the principles of justice and wisdom in the law itself to resolve the case before them. Thus, the Bible seems to allow for some level of personal discernment in how the law applies practically in a judge’s decisions.
However, one big caveat in thinking about our situation today is that the United States is not in a covenant relationship with God, nor are we accountable to the Old Testament law. American judges are expected to uphold American law, not necessarily what the Bible says (though we may hope that these two align to the appropriate extent).
What About Separation of Church and State?
To some degree, the confusion over this issue comes from a misunderstanding of what “separation of church and state” actually means. It doesn’t mean that a judge cannot be religious or that being religious somehow makes a person more biased or prone to read their own values into a law than anyone else. Rather, it means that the Church and government should remain institutionally separate and respect their distinct God-ordained roles.
Ironically, those who seem to worry most about such things also tend to seek judges who believe in an activist judiciary. Activist judges frequently interpret a law or the Constitution in light of their own values (or the values of American culture) rather than judging solely by the original meaning of the law. Thus, they are the ones who often end up reading their own values into the law. In contrast to an activist judiciary, you have judges like Amy Coney Barrett who believe in what is called textualism or originalism. Such judges strive to interpret a law in light of what it originally meant. Doing so avoids imposing one’s own personal preferences into the interpretation of the law.
Ultimately, the Constitution prohibits religious tests for public office. No one can be discriminated against on the basis of their religious beliefs. Christians should rejoice when fellow believers occupy the judiciary, for they will also have the wisdom of God and the Holy Spirit to guide them as they seek to interpret American law faithfully.
**This article was originally published on Advocates for Truth.