An interview with Amy Barrett

This is the interview with Judge Amy Barrett that I would like to hear in the U.S. Senate.

Dramatis Personae:

  • Judge Amy Barrett
  • Senator Chuck Grassley of Iowa, Committee Chair
  • Senator Ted Cruz of Texas
  • Senator Inquisitus, a member of the Senate Judicial Committee

Senator Grassley: Senator Inquisitus, you now have 30 minutes.

Senator Inquisitus: Thank you Sir. Judge Barrett, is the U.S. Constitution a Christian document?

Judge Barrett: No, Senator, it is not. The U.S. Constitution is based on the principle of religious freedom. The First Amendment prevents the government from establishing a state religion, and from restricting the freedom of religious belief. The citizens of the United States are allowed to follow any religion at all.

Senator Inquisitus: Yes, thank you– I completely agree. Article VI of the Constitution says the following:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

U.S. Constitution, Article VI

So that makes it clear that the Congress cannot require that justices of either State or Federal courts be Christians, or Jews, or Muslims, or of any specific faith. Right?

Judge Barrett: Right.

Senator Inquisitus: OK, now let’s imagine that a judge who was appointed to a U.S. Federal court were to convert to an extreme form of Islam that demands punishments in accordance with Islamic law. If that person were to attempt to enforce Islamic law in his court, would Congress have any recourse?

Judge Barrett: Yes, absolutely it would. The Congress can impeach any federal judge. And in fact a number of them have actually been impeached and convicted.

Senator Inquisitus: And supposing that a Catholic judge were to rule that the Catholic church has jurisdiction in a case of sexual abuse by a Catholic priest. If that judge were to remand a priest accused of such abuse to the custody of the Vatican, would the same principle apply?

Judge Barrett: Yes, Senator– it would. That same article you cited– Article VI– that article states that the U.S. Constitution is the supreme law of the land. So no external body can claim precedence in any legal proceeding in the United States.

Senator Inquisitus: I ask these questions, Ms. Barrett, because the President has made a very big deal out of the fact that he has nominated another Christian to the Supreme Court. And in fact his three appointees have all been Christians. What advantage does he see in having so many Christians on the Court?

Judge Barrett: (Shrugs) I don’t really know, Senator. You’d have to ask him.

Senator Inquisitus: Alright– now let’s talk about the boundaries of religious belief. I’m sure you’re aware, Judge Barrett, that Mary Baker Eddy, the founder of the Church of Christ Scientist, believed that it is wrong to treat disease and physical ailments with anything other than faith. She called herself a professor of obstetrics, though she had never been so licensed, and she taught classes of what she called Metaphysical Obstetrics. That was really just a made up term for faith healing. Should states have the ability to set conditions for the licensing of medical practitioners that exclude non-scientific, religion based healing practices? Or should people who have strong religious beliefs about healing be allowed to practice whatever methods they prefer, based on their religious preferences?

Judge Barrett: That’s a hypothetical question, Senator, and I’m not obliged to answer it.

Senator Inquisitus: It’s not at all hypothetical! There are people today who refuse to have their children vaccinated against the childhood diseases. Many of those parents who have claimed exemptions have done so on the basis of religious grounds. In 2019 there were 1,282 cases of measles in the United States. That’s the most since 1992. When children who have not been vaccinated are allowed to attend public school they put other children– and their families– at risk. You and I agree that the First Amendment protects religious liberty. But you have also agreed that the U.S. Constitution and U.S. state and federal laws take precedence over religious belief. You have already agreed that a religious belief in Islamic or Catholic law cannot be enforced by any judge in any State or Federal court. If a State enacts legislation to set science based constraints on medical licensing that exclude faith-based healing, or if the Federal government mandates vaccination for all students in public schools regardless of religious beliefs, would either of those requirements run afoul of the First Amendment?

Judge Barrett: (Glowers) I resent your tone, Senator.

Senator Inquisitus: Ms. Barrett, I think you’re missing a very important point about religious belief as it is supported in the U.S. Constitution. The Constitution allows people to hold any religious beliefs they want, regardless of however nutty they might be. But that does not mean that the government– either State or Federal– has any obligation to set policy or law on the basis of any particular religious belief. Take white supremacy, for example. Many white supremacy organizations– the KKK being just one– are clearly Christian. Should State and Federal law align with white nationalism just because some Christian groups have white nationalistic beliefs? What about polygamy? The Mormon church was founded by Joseph Smith. His biographer Fawn Brodie found that he had at least 48 wives– and that assessment was based on documents she researched in the archives of the Mormon Church! Should all State and Federal laws allow polygamy because one nutty religious group believes in it?

Judge Barrett: (Glowers)

Senator Inquisitus: Ms. Barrett? Do you believe that the U.S. Government should not be allowed to license medical practitioners on the basis of scientifically validated methods that some nutty religious believers disavow? Should State and Federal legislatures be prevented from requiring all students in public schools to get vaccinated because some religious nuts object? Should State and Federal government be required to give preference to white citizens over those of other races because some religious crazy people believe in white nationalism? Should the Federal government be prevented from outlawing polygamy because there are a good many Mormons in Utah who still practice it in secret? Yes or no, Ms. Barrett? Yes or no.

Judge Barrett: (Softly) No.

Senator Inquisitus: Senator Cruz of this very committee has repeatedly claimed that the Federal government is trampling all over the rights of religious believers, in clear violation of the First Amendment– and he has specifically cited the Affordable Care Act as an example. I don’t hear Senator Cruz whining about the rights of religious nuts to practice unlicensed faith based medicine.

Senator Grassley: Senator Inquisitus, you watch your tone! You need to show the other members of this committee the common courtesies you would expect them to show you!

Senator Inquisitus: Oh, but Senator Grassley, none of them have ever shown even the slightest respect to anyone who is not a conservative nut like them! So yes, I am showing them all the courtesy and deference they would show to me– which is none!

Senator Grassley: I’m giving you a warning, Senator! Show respect for the others on this committee or I’ll terminate your time.

Senator Inquisitus: Alright, Senator Grassley. I’ll show respect for them– but you’d better restrain them if they refuse to show respect for us.

Senator Grassley: (Nods) Fair enough. Continue.

Senator Inquisitus: As I was saying, Judge Barrett, I don’t hear Senator Cruz– or any of the conservatives on this committee– defending the right of religious believers to practice medicine without a license. I don’t them talking about the rights of religious parents to avoid having their children vaccinated for childhood diseases. I don’t hear him talking about the rights of Christian white nationalists. I don’t hear him complaining about the rights of Mormon polygamists. Oh, but you should hear Senator Cruz scream and holler about how the owners of Christian businesses feel their rights have been betrayed because they were required by the Affordable Care Act to provide health care plans for their employees that cover contraceptives! Oh, my– what a horrible abridgment of their rights! The Affordable Care Act doesn’t require the business owners themselves to take contraceptives they don’t want to take– and yet Senator Cruz is outraged that they are required by the ACA to cover some costs of contraception for their female employees! He calls that a violation of their First Amendment rights– when in fact they haven’t suffered any personal harm!

Senator Cruz: That’s a lie, Senator Inquisitus! They have most definitely suffered harm! Their beliefs have been violated! They feel personally violated!

Senator Inquisitus: And does a Satanist have a right under the First Amendment to feel that his religious beliefs have been violated if a state outlaws murder and thereby prevents him from conducting a religiously mandated ritual human sacrifice?

Senator Cruz: That’s different!

Senator Inquisitus: How is it different, Senator? People have performed all manner of ridiculous rites in the name of religion down through the ages. Lots of religions have conducted human sacrifice. There are still plenty of people in this country who believe that their religious beliefs are violated whenever a school district teaches the scientific theory of evolution in its biology classrooms. There are people who think that the earth is flat. Does the Federal government have a mandate to support every nutty belief of every nutty religion in the country?

Senator Cruz: No, of course not.

Senator Inquisitus: Therefore there is no reason to believe that any particular religious belief must be allowed under either State or Federal law.

Senator Cruz: So you hate religion. Don’t you Senator?

Senator Inquisitus: I think people should be free to believe anything they want to believe, and that they should be allowed to practice any and all religious rites that do not conflict with either State or Federal law. If a Satanist wants to draw pentagrams on his basement floor and conjure Beelzebub from the depths of Hades– fine. But if he attempts to commit murder as part of a ritual sacrifice– that’s a clear violation of law and should be punished. And I further believe that’s exactly what the Constitution says in Article VI.

Senator Cruz: (Grumbles)

Senator Inquisitus: The point I’m making, Judge Barrett, is that there’s a difference between religious beliefs on the one hand and public compliance with the law on the other. As we have already said the citizens of this country are permitted to believe anything– but the Constitution is the supreme law of the land. And that means that religious beliefs are necessarily subservient to the Constitution. Religious believers are entitled to believe anything at all– but they aren’t entitled to expect that any of their beliefs will be enshrined in law. Isn’t that correct Ms. Barrett?

Judge Barrett: (Long pause) Yes.

Senator Inquisitus: Here’s my problem, Ms. Barrett. I’m not getting the impression that you understand very much about the Constitution. You clearly are not familiar with the argument I set forth concerning the relationship between the Constitution and religion. From my point of view this appears to be a completely new line of reasoning to you. Now I find that rather shocking. You have taught courses on the Constitution at one of the premier universities in this country. Surely you must have had extensive training in the proper interpretation of the Constitution to be able to hold such a position. How is it possible for someone with your stellar credentials to have such a shallow understanding of the Constitution?

Judge Barrett: I stand by my record, Senator.

Senator Inquisitus: Then let’s look into that record. You argued in your paper “Countering the Majoritarian Difficulty” that Justice Roberts relied on judicial restraint to avoid declaring the Affordable Care Act unconstitutional. As I read that paper, Ms. Barrett, it seems clear to me that you believe that what Justice Roberts did was wrong. Did I misinterpret?

Judge Barrett: That’s not relevant to my appointment, Senator. That was an academic paper about the majoritarian problem inherent in our republic. You should be restricting your comments to my record as a federal court judge.

Senator Inquisitus: It is absolutely relevant. As I read it, Judge Barrett, you think the ACA is unconstitutional. That makes it relevant because the ACA is at the very heart of your nomination. President Trump nominated you because he expects you to vote with a conservative majority to reverse Roe versus Wade, to invalidate the Affordable Care Act, and to prevent Joe Biden from getting elected. That clearly means that a vote for you, Ms. Barrett, is a vote to annihilate the Affordable Care Act. So the American People have every right to know what type of reasoning you would employ in service of that goal.

Senator Grassley: That’s not why the President nominated Justice Barrett, Senator, and you know it! The President chose Justice Barrett because she has outstanding qualifications, not because he’s expecting her to rule in any specific way.

Senator Inquisitus: Senator Grassley, I realize that you think that I and all liberals in the Senate are too dense to understand the President’s motivations. But we’re not as stupid as you think we are. The American people know exactly why the President selected Ms. Barrett. Yes, she has excellent credentials. But the real reason the President chose her is because the Federalist Society is convinced that she’ll help to overturn Roe versus Wade and reverse the Affordable Care Act. And I therefore think the American People have a right to know what her reasoning is on the very important topic of the ACA.

Senator Grassley: Humpf. You may proceed, Senator. But just remember that Judge Barrett isn’t required to respond to hypothetical questions.

Senator Inquisitus: Thank you Senator. As I understand the thrust of your paper, Ms. Barrett, the real objection concerns one word in the 1,000 plus pages of the Affordable Care Act. Here’s what you said:

In NFIB vs. Sebelius, the inspiration for Barnett’s book, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did– as a penalty– he would have had to invalidate the statute as lying beyond Congress’s commerce power.

Countering the Majoritarian Difficulty, Judge Amy Barrett, pg. 80

So the conflict appears to be over one word in the text. The authors of the statute used the word “penalty” when they should have used “tax.” Is that a fair assessment of your position?

Judge Barrett: True, it’s just one word, but it’s a very important word. Just imagine what the public reception to the statute would have been if it had been clear from the outset that Congress was contemplating the creation of a new tax!

Senator Inquisitus: But if that one word had been changed, would that have made the Affordable Care Act compatible with the plain text of the Constitution, in your view?

Judge Barrett: (Pause) Yes.

Senator Inquisitus: So would it have been impossible for the Supreme Court to have demanded that one word change, and to have allowed a reasonable period of time for the Congress to enact such a change?

Judge Barrett: Well, theoretically– yes the Court could have done that. But that approach would not have appealed to the conservatives on the court.

Senator Inquisitus: So the other conservatives on the Supreme Court– Justices Scalia, Thomas, and Alito– they’re not interested in working with the Congress to put the will of the people into law. They are only interested in finding fault with legislation that the people want.

Judge Barrett: That’s not what I said.

Senator Inquisitus: Well, it’s certainly what you implied! So the question the American people need to have answered, Judge Barrett, is whether you hope to join the other conservative obstructionists on the Court in nitpicking every piece of legislation to death!

Senator Grassley: Now I’ve had just about enough of your insolent treatment of Judge Barrett, Senator!

Senator Inquisitus: Senator Grassley– that is the most important question that the American people need to have answered in this entire proceeding! The conservatives on this committee know they can’t push their most fondly desired changes through Congress because the people just don’t want them. Conservatives want Roe vs. Wade overturned, but between 65 and 70 percent of Americans don’t want that. Conservatives have been striving for more than 80 years to overturn the New Deal, but in August 2020 Pew Research found that 66 percent of Americans back candidates who support expanding and increasing Social Security benefits. Conservatives know they can’t win against public opinion on any of those issues– so they have resorted to packing the Supreme Court with obstructionists like Scalia, Thomas, and Alito. Their job is to find fault with any and all laws written by liberals– even if it amounts to a quibble over a single word! And now President Trump wants to add yet another obstructionist to the court!

Senator Grassley: Alright, Senator Inquisitus, that’s it! You have pushed me to the limit! I’m cutting your time short.

Senator Inquisitus: Thank you Senator. And thank you, Judge Barrett.

Copyright (c) 2020 by David S. Moore

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