Nov. 2, 2020 - With the most recent addition of a new U.S. Supreme Court Justice on Monday, University of Houston Law Center faculty analyzed the process in a Zoom discussion entitled, "Legal Implications Amy Coney Barrett's Supreme Court Nomination Confirmation" last week.
Professor of Law and the Mike and Teresa Baker College Professor Johnny Buckles was the opening speaker. He discussed the role of religious clauses and their relevance during confirmation proceedings for a Supreme Court vacancy.
"It is appropriate for a Senator to inquire into whether a judicial nominee will faithfully discharge her office," Buckles said. "It is therefore appropriate for a Senator to ask whether a judicial nominee's views - whether they're scientific, philosophical, ethical or religious - will affect how she interprets the Constitution. But is there a Constitutional violation when a Senator argues or votes against a judicial nominee on account of that nominee's religious faith?
"Senators who oppose a nominee solely on the basis of religious belief, that is, concluding with no legitimate basis that those beliefs would impair the nominee's ability to discharge her public duties, would offend all major Constitutional norms, particularly the neutrality norm. But they would technically not be violating the Constitution. If a Senator were to oppose solely because of faith, that decision would not rise to the level of a violation of the religion clauses, just the norms."
Associate Professor of Law and Business James Nelson noted that the constitutional norm of equal treatment has a “flip side,” which he described as a “commitment to religious nonpreferentialism.” This commitment, Nelson said, means that “the government is not allowed to prefer one religion over others, nor may it prefer religion over nonreligion.” He then discussed several reasons to be concerned about the erosion of nonpreferentialism following Barrett’s confirmation.
“We didn’t get a lot of new information at Justice Barrett’s hearings, but I do think we have some reasons to worry that this norm of religious nonpreferentialism might be losing its hold on the Supreme Court,” he said.
Professor Renee Knake Jefferson, Professor of Law and the Joanne and Larry Doherty Chair in Legal Ethics and Director of Law Center Outcomes and Assessments drew from her book, “Shortlisted: Women in the Shadow of the Supreme Court,” and discussed upcoming decisions that Coney Barrett could have an impact on.
“There are cases in the works right now involving how we count votes across the country. In the year that we’re celebrating 100 years of women’s suffrage, these voting rights cases matter to women – making sure that everyone’s vote gets counted.
“Healthcare is coming up on Nov. 10, which is another issue important to women and women’s rights. Immigration, on Nov. 30 will be Trump v. New York involving census counting and whether or not individuals without the appropriate status can be included in the census counts. That matters because that dictates how many representatives may be seated from a particular case in Congress. And of course, abortion cases are undoubtedly going to be in the pipeline. Those are just a handful of issues coming before the Court, and everyone will be anxious to see where she stands.”
The discussion was one of a series of events sponsored by the Law Center’s Diversity & Inclusion Committee, which is co-chaired by Professor Meredith J. Duncan, Professor of Law and Assistant Dean of Diversity, Inclusion and Metropolitan Programs and Clinical Professor Geoffrey Hoffman, director of the Immigration Clinic.