A Handmaid’s Tale: Amy Coney Barrett, originalism, and the specter of religion

ABSTRACT

In this essay, we analyze the Supreme Court confirmation hearings of Amy Coney Barrett to identify and explain the interaction between religion and jurisprudential philosophy. By tracing rhetorical scholarship on religion, politics, and the Supreme Court, we highlight tension engendered by both the members of the Senate Judiciary Committee and Barrett herself in locating her Catholicism as a desirable attribute for a nominee while at the same time espousing the importance of judicial objectivity. We suggest Barrett and her supporters on the committee invoked the judicial philosophy of originalism to allay this tension while occluding conversations about Barrett’s prior ideological commitments. We conclude by troubling the wide circulation of a simplified version of originalism and the (re)circulation of Christian victimhood narratives.

KEYWORDS:

• Victimhood
• Supreme court
• Christianity
• Legal rhetoric
• Jurisprudence

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Coker, “Replacing Notorious,” 101–130.

2. Fishkin and Pozen, “Asymmetric Constitutional Hardball,” 915–982.

3. Feller, “What to Know.”

4. Talbot, “Amy Coney Barrett’s Long Game.”

5. Coe and Chenoweth, Presidents as Priests, 375–394; Coker, “From Exemptions to Censorship,” 35–52; Domke and Coe, The God Strategy; Medhurst,“Forging a Civil-Religious Construct,” 86–101; Reed, “Religion and Politics,” 46–62; Coe and Chapp, “Religious Rhetoric Meets,” 110–127; Kaylor, Presidential Campaign Rhetoric.

6. Cross, Failed Promise, 16–30; Langford, Scalia v. Scalia, 9–23; Parry-Giles, Character of Justice, 127; Post and Siegel, “Originalism as Political,” 545; Whittington, “Is Originalism oo Conservative?” 29.

7. Parry-Giles, Character of Justice, 127; “Confirmation Hearing on Neil Gorsuch,” 155–159.

8. Collins and Ringhand, Supreme Court Confirmation Hearings.

9. Cross, Failed Promise, 152–173; Curtis, “Why Originalism,” 437–460; Langford, Scalia v. Scalia, 116–128; TerBeek, “Clocks Must Always,” 821–834; Whittington, “Is Originalism Too conservative?” 29.

10. 10. Hart, Political Pulpit, 87–98.

11. Aune, “Three Justices,” 573–597; Kaylor, Presidential Campaign Rhetoric, 27–50; Medhurst, “Forging a Civil-Religious Construct,” 86–101.

12. For discussions of civil religion, see Bellah, Civil Religion, 1–21. For discussions of civic piety, see Hart, Political Pulpit. For a discussion of the new era of confessional politics, see Kaylor, Presidential Campaign Rhetoric.

13. Kaylor, Presidential Campaign Rhetoric, 63–90.

14. Wilcox and Robinson, Onward Christian Soldiers, 59–91; Domke and Coe, The God Strategy, 16–17, 28.

15. Wilcox and Robinson, Onward Christian Soldiers, 35–91; Hadden, “The Rise and Fall,” 113–130; Pew Research Center, “Decline of Christianity.”

16. Sutton, “Jerry Falwell and the Rise.”

17. Gerner, “Catholics & the Religious Right,” 15; Sekulow, Witnessing their Faith, 306–311.

18. Jenkins, “From the Bible Belt.”

19. Gring, “Broken Covenants,” 115–135; Reed, “Religion and Politics,” 46–62; Kaylor, Presidential Campaign Rhetoric, 228.

20. Wilcox andRobinson, Onward Christian Soldiers, 115; Domke Coe, The God Strategy, 102–146.

21. Ibid.

22. Aune, Three Justices, 573–597; Stahl, Carving Up Free Exercise, 439–458; Coker, “From Exemptions,” 35–52; Coker, “Do You Think;” Coker, “Replacing Notorious;” Farganis andWedeking, “No Hints, No Forecasts,” 525–559; Lane and Schoenherr, “A Matter of Great,” 1–27.

23. Schoenherr, Lane, and Armaly, “The Purpose,” 1430–1441; Krewson and Schroedel, “Public views,” 2020.

24. De Saint Felix and Corrigan, “Rhetorical Style of Predatory,” 293–315.

25. Coker, “Do You Think,” 11–12.

26. Coker, “Replacing Notorious,” 101–130.

27. Horwitz, “Religious Tests,” 76–144.

28. Pinello, “Gay Rights and American”; Songer and Tabrizi, “Religious Right”, 507–526; Wasserman & Hardy, “US Supreme Court Justices’,” 111–159.

29. Langford, Scalia v. Scalia, 19.

30. Solum, “Public Meaning Thesis,” 1966–1970; McGinnis and Rappaport, “Unifying Original Intent,” 1418.

31. Finkelstein, “Rhetoric of Originalism,” 43.

32. Baude, “Originalism as a Constraint,” 2213–2230.

33. Aune, “Three Justices,” 573–597; Balkin, “The Construction of Original,” 71–98; McGinnis and Rappaport, “Unifying Original Intent,” 1371–1417.

34. Balkin, “The Construction of Original,” 78.

35. Finkelstein, “Rhetoric of Originalism,” 42.

36. Ibid; TerBeek, “Clocks Must Always,” 821–834.

37. Curtis, “Why Originalism,” 437–460.

38. Carr, Rhetorical Invention, 20; Coker, “From Exemptions to Censorship,” 35–52; Hasian et al, “Rhetorical Boundaries,” 323–342.

39. Collins and Ringhand, Supreme Court Confirmation Hearings, 132

40. Ibid.

41. Parry-Giles, Character of Justice, 127.

42. Cross, Failed Promise, 1–44.

43. “Nomination of Elena Kagan” 62.

44. De Saint Felix and Corrigan, Rhetorical Style, 293–315.

45. Pittsburgh Gazette, January 16, 1836, 2; Pittsburgh Gazette, February 20, 1836, 2.

46. Parry-Giles, “For the Soul,” 83–106.

47. Rotunda, “Confirmation Process,” 560.

48. Ringhand, “Aliens on the Bench,” 797–825.

49. Yalof, “Pursuit of Justices,” 128.

50. Ahmed, “First Muslim.”

51. Horwitz, “Religious Tests,” 76–144.

52. Ibid.

53. Ibid.

54. Kieschnick, “Why is the Christian Right?”

55. “Nomination of Elena Kagan,” 144.

56. Goodstein, “Sotomayor Would be Sixth.”

57. Martínez and Smith, “Trump has benefited”; Taylor, “Citing ‘Two Corinthians”; Zauzmer, “Evangelical Magazines.”

58. Sullivan, “Trump Promises.”

59. Zauzmer, “Neil Gorsuch Belongs.”

60. Kavanaugh, “Supreme Court Nomination.”

61. Wolf, “Trump Names 10.”

62. Planned Parenthood, “Planned Parenthood Condemns”; National Women’s Law Center, “Five Things.”

63. Hatch, “Amy Coney Barrett.”

64. Garvey and Coney “Catholic Judges.”

65. Feinstein, “Amy Coney Barrett.”

66. Ahmari, “The Dogma”; Feldman, “Feinstein’s Anti-Catholic.”

67. Aron, “Op-Ed: Forget the Critics.”

68. Jeffress, “Dr. Robert Jeffress: Faith.”

69. Coker, “Replacing Notorious,” 102.

70. Barrett Senate Confirmation Hearing, Day 1. Confirmation transcripts henceforth referenced as Barrett Confirmation Day 1, 2, 3, or 4.

71. Langford, Scalia v. Scalia. TerBeek, “Clocks Must Always,” 821–834.

72. Balkin, “The Construction of Original.”

73. Barrett Confirmation, Day 2.

74. Ibid.

75. Post and Siegel. “Originalism as a Political,” 545–574.; Whittington, “Is Originalism too Conservative?” 29–44.

76. Langford, Scalia v. Scalia, 124–126.

77. Alito, “A Tribute to Justice Scalia.”

78. Barrett Confirmation, Day 2.

79. Walther, “Sam Alito: A Civil Man.”

80. Barrett Confirmation, Day 2.

81. Finkelstein, “Rhetoric of Originalism,” 42–71.

82. Barrett Confirmation, Day 1.

83. Kmiec, “Origin and Current Meanings,” 1441–1477.

84. Barrett Confirmation, Day 1.

85. Ibid.

86. Ibid.

87. Ibid.

88. Ibid.

89. Ibid.

90. Ibid.

91. Ibid.

92. Barrett Confirmation, Day 4.

93. Ibid.

94. Barrett Confirmation, Day 1; Barrett Confirmation, Day 3.

95. Ibid.

96. Barrett Confirmation, Day 2.

97. Barrett Confirmation, Day 1.

98. Roche, “These 4 GOP Governors.”

99. Collins and Ringhand, Supreme Court Confirmation Hearings.

100. Hart, Political Pulpit.

101. Barrett Confirmation, Day 1.

102. Barrett Confirmation, Day 2.

103. Hart, Political Pulpit, 43–53.

104. Barrett Confirmation, Day 2.

105. Ibid.

106. Ibid.

107. Ibid.

108. Greenhouse, Justice on the Brink, 50–176.

109. Barrett Confirmation, Day 2.

110. Ibid.

111. TerBeek, “Clocks Must Always, 821–834.

112. Barrett Confirmation, Day 2.

113. Curtis, “Why Originalism,” 437–460; Finkelstein, “Rhetoric of Originalism,” 42–71; Whittington, “Is Originalism Too Conservative?”

114. Cross, Failed Promise, 152–172; Langford, Scalia v. Scalia, 119; Whittington, “Is Originalism Too Conservative?”

115. Parry-Giles, Character of Justice, 125.

116. TerBeek, “Clocks Must Always,” 821–834; Coker, “Do You Think,” 19–21.

117. Dennie, “Originalism Is Going to Get.

118. Greenhouse, Justice on the Brink, XII.

119. Ibid.

120. Ziegler, “Originalism Talk,” 869–926.

121. Coker, “From Exemptions to Censorship,” 35–52; Kelly, “Whiteness, Repressive Victimhood,” 59–76.

122. Greenhouse, Justice on the Brink, 213.

123. Gunn, “Maranatha,” 359–385; Kelly, “Whiteness, Repressive Victimhood,” 59–76.

124. Benson, “Graham Vents Barrett.”

125. Gibson. “A Rupture in the Courtroom.”

126. Wolffe, “Anti-Catholicism,” 179–197; Sekulow, Witnessing their Faith, 208–210.

127. Greenhouse, Justice on the Brink, XX-XXXI.