How Would Amy Coney Barrett Rule as a Supreme Court Justice?

My one real conversation with Justice Ruth Bader Ginsburg took place in 2004, when I was a law clerk for Justice David Souter. Ginsburg invited my colleagues and me for tea in her chambers, where she served pastries baked by her husband. Ginsburg recalled the initial revelation of the term “sexual harassment,” which put a name to a phenomenon that, she said, “every woman” understood. Among her stories was one that is widely known today, about the sexism of the nineteen-fifties. When Ginsburg was a student at Harvard Law School, the handful of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man. Four decades later, when Justice Byron White, who had dissented in Roe v. Wade, retired from the Supreme Court, the spot that opened up did not go to a man but to Ginsburg, who by then was a judge on the D.C. Circuit and a longtime heroine of the women’s movement. And, in just a few weeks, her seat will likely be occupied by another woman, the Court’s fifth ever: Amy Coney Barrett, another circuit-court judge and a former professor at Notre Dame Law School, whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg’s legacy.

When President Trump announced Barrett’s nomination, on September 26th, she paid homage to Ginsburg, who “began her career at a time when women were not welcome in the legal profession,” and promised that, if confirmed, she will “be mindful of who came before me.” But Barrett, who clerked for Justice Antonin Scalia, is a conservative; she said that Scalia’s “judicial philosophy is mine, too.” During her confirmation hearings, she has been asked to justify replacing a great liberal feminist Justice, taking a spot that, after the election, could perhaps have gone to a Democrat.

In February of 2016, Barrett, then at Notre Dame, gave her opinion on making Supreme Court appointments close to an election. Just days after Scalia died, and a month before President Obama nominated Merrick Garland to take his seat, Barrett was interviewed on CBS News about Senate Republicans’ nascent claim that, in Senator Marco Rubio’s words, “Presidents don’t nominate Supreme Court Justices during election years.” Barrett rejected that assertion, given that there had been six such confirmations in the twentieth century, saying, instead, that “the Senate is willing to push a President’s nominees through in an election year when they share the same political affiliation.” In the past century, she recounted, the only Supreme Court confirmation during an election year when the Presidency and the Senate were controlled by different parties was that of Justice Anthony Kennedy, a moderate Republican who replaced a moderate Republican, in 1988. Practically, she concluded, “the President has the power to nominate and the Senate has the power to act or not, and I don’t think either one of them can claim there is a rule governing one way or another.”

Barrett’s analysis was a subtler elaboration on Senate Majority Leader Mitch McConnell’s eventual position: that confirming a Republican nominee on the eve of the 2020 election could be squared with refusing to act on a Democratic nominee in 2016. Several Democratic Senators refused to meet with Barrett during such an “illegitimate sham process,” as Senator Richard Blumenthal put it—but this tragedy for liberals and windfall for conservatives, stemming from Ginsburg’s decision not to retire, as an octogenarian, during the Obama Administration, was easily foreseen. Two other liberal Justices with whom Ginsburg served, Souter and John Paul Stevens, both of whom were appointed by Republican Presidents, retired during Obama’s Presidency. Two years before Ginsburg joined the Court, the great liberal Justice Thurgood Marshall retired, and President George H. W. Bush nominated Clarence Thomas to replace him. A majority of Americans now say that the next President should appoint Ginsburg’s replacement. But President Trump and the Republican Senate have the ability to make the appointment, and few believe that Democrats would behave differently if they were in power.

As a Catholic conservative woman taking the seat of a feminist icon, Barrett faces demonization on the left and equal lionization on the right. We saw a version of this play out in 2017, during Barrett’s confirmation to the Seventh Circuit. Senator Dianne Feinstein said in that confirmation hearing that “so many of us on this side have this very uncomfortable feeling,” because “the dogma lives loudly within you.” Conservatives took Feinstein’s statement as anti-Catholic slander that flirted with violation of the constitutional provision that “no religious test shall ever be required as a qualification to any office.” The phrase “the dogma lives loudly within you” quickly became a defiant T-shirt slogan, sealing Barrett’s status as a heroine among conservative activists.

Barrett—who, if confirmed, will raise the number of Catholics currently on the Court to a whopping six—has made Catholicism central to her intellectual identity, speaking and writing about her faith. As a young lawyer, she tackled the question of Catholic judges’ religious consciences head on. In a law-review article, published in 1998, Barrett and her co-author, John H. Garvey, wrote that a Catholic trial judge who believes that the death penalty is immoral should recuse herself from any cases that could result in a death sentence, because “setting the wheels of injustice in motion” is morally wrong and violates conscience. Barrett and Garvey suggested that an appellate judge is differently situated, because she is not usually imposing a sentence but rather affirming or reversing one after hearing procedural or other legal challenges. The two co-authors concluded that a Catholic appellate judge “should enforce the law in easy cases, even if he could save a life by cheating.”

The article didn’t directly address the judging of abortion cases, but it did refer to the Church’s position that abortion is “always immoral” and that the prohibition against it is “absolute.” Barrett herself stated, in 2013, that she believes life begins at conception; in 2006, she signed a statement, published as a newspaper ad, that declared, “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” That said, Barrett’s stated views don’t appear to indicate that she would vote her religious conscience over and above legal obligations; if they were ever to come into direct conflict, her proposed solution is recusal. During Barrett’s confirmation process in 2017, she told the Senate that her belief in the immorality of abortion “will have no bearing on the discharge of my duties as a judge.” And, on Tuesday, she stated that she has “no agenda to try and overrule” Planned Parenthood v. Casey, the Court’s abortion-rights precedent, adding, “I have an agenda to stick to the rule of law and decide cases as they come.”

Democrats appear to have learned from Feinstein’s example to avoid questions about whether Barrett is dogmatically or obscurely devoted to a higher fealty, in favor of actually engaging her conservative jurisprudence disfavoring abortion rights, and without stoking fear of her religion. During her three years on the Seventh Circuit, Barrett has twice dissented from the court’s refusal to rehear cases that struck down several of Indiana’s restrictions on abortion. In one case, the state had created a new requirement that when minors seek abortions, their parents or guardians must be notified, even if a judge has concluded that the minor is mature enough to make her own decision. Barrett joined a dissent objecting to her colleagues’ ruling that the law could not take effect while the state went to the Supreme Court. The other case challenged a state law that prohibited abortion sought solely because of the fetus’s race, sex, or disability, and another that disallowed disposal of fetal remains as surgical waste. A panel of Barrett’s colleagues struck down both restrictions; the state then asked the full court for rehearing only on the issue of fetal remains. When the court refused, she joined a dissent that argued that restricting methods of remains disposal is not an “undue burden” on the abortion right under Supreme Court precedents, and called the selective-abortion legislation an “anti-eugenics law.” Her dissent was vindicated last year by seven Supreme Court Justices, who reversed the Seventh Circuit panel on the issue of fetal remains, and by Justice Thomas’s concurring opinion, which claimed a connection between contemporary abortion rights and the early-twentieth-century eugenics movement.

Days before the November, 2016, election, Barrett, then a law professor at Notre Dame and a promising conservative judicial prospect, commented on how a future Supreme Court might change abortion rights: “Roe’s core holding that, you know, women have a right to an abortion—I don’t think that would change,” Barrett said. “But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics—I think that would change.” Such remarks, combined with Barrett’s judicial record, allow for a confident prediction that, as a Justice, she would vote to narrow the abortion right. The process will be more complicated than Trump suggested in his grandiose campaign promise that, because of his Supreme Court appointments, overturning Roe “will happen, automatically.” With a majority of the country in support of both keeping Roe and placing some restrictions on the abortion right, the best bet is that, even with the addition of Barrett, we’ll see Roe meaningfully curtailed but not eliminated, particularly at a time when the Justices must be very concerned about the Court’s fragile legitimacy, particularly given the heat of proposals for Congress to add more Justices or to impose term limits on them.

Some conservatives have in recent years advanced an outré argument that fetuses might have personhood-based rights, which might make abortion bans not just permissible but constitutionally required. It seems improbable that Barrett would interpret the due-process clause so expansively, or that there would be five votes for that. The modern judicial-conservative program has been to constrict rather than to expand the clause’s substantive reach, and to leave fundamental moral questions to the states. That approach has led Barrett to voice support for the reasoning of the dissenters in Obergefell v. Hodges, which, in 2015, declared a constitutional right to same-sex marriage. She has said that the issue in the case was not whether the Court was “for or against same-sex marriage” but rather “who gets to decide whether we have same-sex marriage or not.” Barrett clearly would have been in the dissent in Obergefell, but, as with Roe, it’s not clear that she would simply vote to overturn it, any more than Chief Justice John Roberts would relish the Court’s crudely effecting a direct reversal of a recent decision or important landmark.

It’s obvious that Barrett’s meteoric career is in part a result of doors opened by the legal movement for gender equality, which Ruth Bader Ginsburg led, around the time that Barrett was born. In the early seventies, Ginsburg litigated landmark cases that persuaded the Supreme Court to rule against policies that treated individuals differently simply “on the basis of sex.” Commentators have pointed to one of Barrett’s cases, in particular, as a troubling sign of her alleged anti-feminism, and the risk that she would undo Ginsburg’s legacy. In 2019, writing for a unanimous panel of judges, Barrett denied Purdue University’s motion to dismiss a male student’s claims that the school violated due process and Title IX by using fundamentally unfair procedures to decide that he had committed sexual violence. Speaking about that case, Emily Martin, the vice-president for education and workplace justice at the National Women’s Law Center, recently described Barrett to the Washington Post as “a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

Justice Ginsburg did not have a chance to decide a Title IX case about college sexual-misconduct procedures. But, in an interview about the #MeToo movement in The Atlantic, in 2018, she told Jeffrey Rosen that she believed some college sexual-misconduct procedures were unfair. “The person who is accused has a right to defend herself or himself,” she said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” Asked about how to “balance the values of due process against the need for increased gender equality,” she said, “It’s not one or the other. It’s both.”

Ginsburg’s comments sit well with her groundbreaking gender-equality theories from the seventies, when she won cases challenging benefits that were given to women and denied to men on the basis of underlying gender stereotypes: a housing allowance for service members’ wives but not husbands; survivor benefits for widows but not widowers; a lower drinking age for women than men; and an option for women but not men to skip jury duty. It makes sense that Ginsburg would take a similar approach to sexual-misconduct cases, in which the accused are predominantly men, believing that not allowing them fair process would undermine rather than promote gender equality. To the extent that Barrett’s Title IX and due-process decision reflects her views on gender equality, they would be hard to distinguish from Ginsburg’s and many liberals’ (not to mention my own).

Abortion aside, I’ve seen little indication that Barrett would be inclined to undo the gender-equality concept that centrally defines Ginsburg’s legacy. In 2018, Barrett affirmed a Title VII decision in favor of a Black male butcher who was sexually and racially harassed by his male co-workers, writing that a reasonable jury could conclude that he was tormented “because of his sex.” On the contested issue of transgender bathroom access, Barrett said, in 2016, “When Title IX was enacted, it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result at that time. Maybe things have changed so that we should change Title IX.” Barrett was suggesting that Congress, rather than the courts, was responsible for updating Title IX protections. But after the Court’s decision this past summer in Bostock v. Clayton County, in which Justice Neil Gorsuch and Chief Justice Roberts joined with four liberals to determine that Title VII’s prohibition of workplace discrimination “because of sex” protects gay and transgender people, the Court’s majority, which may well include Barrett, will likely interpret Title IX’s ban on discrimination “on the basis of sex” as protecting transgender students.

One question that has become a focus of the confirmation fight is whether Barrett might help Trump undo the most significant aspect of President Obama’s legacy, the Affordable Care Act. The week after the election, the Supreme Court will hear arguments in a case challenging the law, and if the confirmation goes according to the Republicans’ plan, the case will be among the first on which Barrett will sit. In 2012, Chief Justice Roberts famously saved Obamacare from being declared unconstitutional, by interpreting the penalty for individuals who do not purchase health insurance as a “tax” rather than as a command to purchase insurance. But in 2017, Republicans eliminated that tax, which now raises the question whether the provision is still a constitutional exercise of Congress’s power, and, if not, whether the entire law now must fall. As a law professor, Barrett wrote that the Chief Justice’s interpretation “pushed the Affordable Care Act beyond its plausible meaning to save the statute,” a view shared by many conservatives, but hardly limited to them. This comment has led Democrats to extrapolate that she would now vote to invalidate the entire health-care law, though there is little evidence on how she would actually decide and not all legal conservatives seem convinced of the arguments for striking it down. The Democrats have heavily emphasized the A.C.A. in Barrett’s confirmation hearings as a political strategy, less than three weeks before the election in which they hope to take the Presidency and flip the Senate. Regardless of Barrett’s position, however, the broad popularity of the A.C.A., particularly during the pandemic, makes it likely that five Justices will find a way to preserve the protections of the health-care law—and, more important, that Congress would act if they do not.

For what must have been a demoralizing half century, conservatives pined for a Supreme Court that would finally give them satisfying victories on abortion and other hot-button social issues, including affirmative action and immigration. Each time conservatives believed that they were on the verge of such decisions, they were frustrated by Republican-appointed Justices—Sandra Day O’Connor, Souter, and Kennedy, and more recently Roberts and Gorsuch—in key cases praised by liberals. Even Scalia had his moments, though not in the most celebrated liberal cases. And before that, Republican appointees John Marshall Harlan and William Brennan turned out to be liberals; the former innovated the concept of privacy that led the Court to find an abortion right in the due process clause, and the latter joined Roe as one of the most liberal Justices full stop. And of course, we can’t forget the Nixon-appointed Harry Blackmun, who authored Roe itself. With Barrett’s confirmation, Republicans will have appointed nearly three times the number of Justices that Democrats have since Roe v. Wade. Despite the certainty of both sides that this time is really different, I still can’t shake the sense that I’ve watched this scene before. Charlie Brown is running to kick that football yet again.

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