Skip to content
Noah Feldman

Amy Coney Barrett Should Recuse Herself on Abortion Cases

She’s expressed unusual beliefs on recusal — beliefs that should require her to opt out of ruling on reproductive rights.

Her unusual recusal argument leaves her in a tough spot.

Her unusual recusal argument leaves her in a tough spot.

Photographer: Susan Walsh/Getty Images

Judge Amy Coney Barrett has expressed the highly unusual view that judges should recuse themselves when a case might require them to act against conscience and violate Catholic Church teaching. On its own, the view is defensible. But it carries an important implication, one that Barrett hasn’t addressed: that Barrett should recuse herself from any case involving abortion rights regardless of how she would rule.

To understand this argument, you have to begin with how unusual Barrett’s view is. Most judges and judicial nominees take the view that their religious beliefs are irrelevant to the job of judging. The strongest formulation echoes that of Thomas Jefferson, who wrote in his Bill for Establishing Religious Freedom “that our civil rights have no dependence on our religious opinions, any more than on our opinions in physics or geometry.”