Women: Victims of the Hypocrites on the Supreme Court

Photograph by Nathaniel St. Clair

On June 24, 2022, The U.S. Supreme Court handed down its decision in the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization.[1]  The Court overruled Roe v. Wade, allowing the states to impose whatever abortion restrictions their legislatures can come up with.

Judges should be immune from partisan and sectarian pressures when deciding cases.

This is especially true when the case involves a woman’s right to make decisions about her own body and her private reproductive choices in consultation with her healthcare provider free from government interference. Before Dobbs, this “medical model” adopted in Roe, had been acknowledged to be “settled law” by the men and women who have been appointed to the Supreme Court since Roe was handed down in 1973.

Notwithstanding, however, with Dobbs a majority of the Court has adopted conservative Republican and Catholic/Christian-right ideology condemning a woman’s right to choose. Worse, the Justices violated federal law in doing so.  Here’s why.

There are six Roman Catholics sitting on the Court: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett and Sonia Sotomayor. Of these, Justice Sotomayor is considered a progressive, the other five being generally regarded as conservatives. (Justice Ketanji Brown Jackson, Justice Stephen Breyer’s replacement, was not on the Court when Dobbs was argued).

Had they followed federal law, these six Catholic Justices—as well as the other three–should have never sat in deciding Dobbs.

Federal law, 28 U.S.C. § 455, requires a federal judge or justice to recuse himself or herself (that is, to not participate in a case) where, for among other reasons, the judge’s impartiality might be questioned or for reasons of personal bias or prejudice.

The impartiality of the six Catholic Justices sitting on a case involving abortion is not even questionable. Indeed, every justice on the Court had previously expressed an opinion on abortion rights, for or against, so, to be fair, all nine (Justice Stephen Breyer included) should have recused themselves.

However, to the religion point, before being appointed to the federal bench in 2017, now Justice, Barrett co-authored a law review article, Catholic Judges in Capital Cases. 81 Marq. L. Rev. 303 (1997-1998). In her article, Barrett focused on 28 U.S.C. § 455.

Barrett concluded that because the Catholic Church condemns practices whose point is taking life, for example, in death penalty cases: “Judges cannot-nor should they try to-align our legal system with the Church’s moral teaching whenever the two diverge.  They should, however, conform their own behavior to the Church’s standard.” “[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.” Accordingly, the moral impossibility of enforcing capital punishment requires recusal under the federal statute. However, Ms. Barrett’s law review article concedes that “the church’s [death penalty] teaching requires a few qualifications.”

That said, she recognized no such “qualifications” when it comes to abortion. Indeed, she stated “[t]he [Church’s] prohibitions against abortion . . . are absolute; those against . . . capital punishment are not . . . abortion take(s) away innocent life.”

Thus, the Catholic Church’s “absolute” condemnation of abortion make it morally impossible for Catholic Justices to fairly and impartially decide any abortion case. Catholic Justice are “morally precluded” from upholding an abortion case, and would have to “conform their own behavior to the [Catholic] Church’s standard.”  In short, the dictates of their faith require a Catholic Justice to have a per se personal bias against any abortion case.

Notwithstanding, in violation of the clear requirements of the federal recusal statute, all six Catholic Justices participated in and decided Dobbs. These Catholic Justices did not decide the case impartially, according to settled law and precedent.  Rather the majority conformed their decision to the sectarian doctrines of the Catholic Church—and incidentally to ideological platform of the Republican Party.

Indeed, on September 12, 2021, in an ultimate display of hypocrisy, Justice Barret sanctimoniously proclaimed that judges must be “hyper vigilant to make sure that they’re not letting personal biases creep into their decisions, since judges are people too.”  And that the Court “is not comprised of a bunch of partisan hacks.”

That hogwash notwithstanding, in Dobbs politics and religion won and women lost a fundamental right at the hands of—sorry, Justice Barrett–a bunch of partisan hacks.

Women are the victims of Justices who had no business sitting on the case:  the hypocrites on the United States Supreme Court.


[1] Cause No. 19-1392


James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.