Beware of Judge Amy Coney Barrett
Just eight days after Justice Ruth Bader Ginsburg died, President Trump nominated Judge Amy Coney Barrett of the 7th Circuit Court of Appeals to fill Justice Ginsburg’s Supreme Court seat. Make no mistake, Judge Barrett poses a serious threat to the Constitution.
For starters, Judge Barrett is intensely ideological. Her primary criticism of Roe v. Wade is that it “creat[ed] through judicial fiat a framework of abortion on demand.” Her primary objection to Roe is not on constitutional grounds. True, she is claiming that the Supreme Court is legislating from the bench, but her main objection is that the Court is allowing something that she is personally against, regardless of whether it can be interpreted to exist in the Constitution. On that point, her ideological rigidity means she has no regard for precedent. Writing for the Texas Law Review in 2013 on stare decisis — the legal principle of standing by previous decisions — then-professor Barrett classified seven cases as “super-precedent,” or precedent that courts would be extremely unlikely to overturn. She does not believe Roe to be a super-precedent, despite its being upheld in the 1992 landmark case Planned Parenthood v. Casey. A super-precedent, under her definition, would have to be so widely supported in public opinion (not just in rulings by the Court) that it could not be overturned. She claims that the existence of Casey is proof that Roe has not met that standard.
These statements are disturbingly inconsistent. To begin with, Casey was decided 21 years prior to her piece on stare decisis. In 2013, Roe still stood, reaffirmed by the latest abortion rights case just this year. As for public support in 2013, Pew Research found that 60% of Americans opposed overturning Roe. As of Aug. 2019, that number has risen to 70%. Surely that qualifies as widespread public support.
On the other hand, Judge Barrett agrees that Brown v. Board of Education does qualify as a super-precedent, despite the vast number of cases regarding school segregation that occurred after that ruling. Consistency requires that Roe be treated as just as much of a super-precedent as Brown. What accounts for her inconsistency? The only plausible explanation is that Judge Barrett has a personal objection to the right granted in Roe and believes that, therefore, precedent should not matter. That is dangerous, indefensible and anti-Constitutional jurisprudence because it makes ideology the sole factor in deciding a case and disregards not just precedent but written text itself.
Even Judge Barrett’s former boss, the late Justice Antonin Scalia, the epitome of originalism, abhorred the patently ideological approach. Dissenting in United States v. Virginia, Scalia criticized the late Justice Ginsburg’s appeal to an “exceedingly persuasive justification” for discrimination on the basis of sex. Scalia stated that to win, litigants would just have to “persuade … Justices … that their view of the world is enshrined in the Constitution,” thereby “effectively impos[ing] that view on all 50 States.” Barrett seems to believe that personal beliefs trump written text, and that they therefore are the equivalent of written text. Any litigant with an ideological agenda to overturn Roe, or any other precedent that Barrett doesn’t like, could easily persuade Justice Barrett to side with them and impose their ideology on all 50 states. In fact, she has already ruled in favor of limiting access to abortion several times during her tenure on the bench, such as dissenting from a court opinion striking down a parental consent law.
Even if Judge Barrett’s inconsistent statements on Roe and Brown in the Texas Law Review did not suggest ideological opposition to Roe, we know that she is ideological in a way that undermines the First Amendment. Judge Barrett has made it clear that she will not check her personal beliefs at the door when taking the bench. In her commencement speech at the University of Notre Dame Law School in 2006, Barrett told graduates to “always keep in mind that your legal career is but a means to an end, and … that end is building the kingdom of God.” Thus, Barrett is saying that law should be used to advance faith. This statement undermines the Establishment Clause of the Constitution, which is meant to separate Church from State. This is another reason why she poses a threat to the Constitution and why she is likely to violate her oath to “administer justice without respect to persons.”
Judge Barrett has suggested that she would seek to make access to an abortion difficult even if Roe is not overturned. In 2013, she stated that the right to an abortion would likely be upheld in future litigation and that “the controversy right now is about funding. It's a question of whether abortions will be publicly or privately funded." Based on her views on abortion, we know her views on public funding of abortion: she is opposed to it. In 2006, she signed on to a newspaper ad denouncing “abortion on demand.” From that, we can discern that she does not want abortion to be publicly funded.
It is clear that Barrett does not believe in unenumerated rights, which are enshrined in the Ninth Amendment to the Constitution, including the right to privacy on which Roe is based. Specifically, she would reject the view that the rights set out in the Constitution imply additional rights not specifically enumerated. This violates the core tenet in Griswold v. Connecticut, that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substances." The only other Supreme Court nominee to take her view was Judge Robert Bork, whose nomination was rejected by the Senate 33 years ago. He also did not believe that unenumerated rights existed in the Constitution, and rejected the right to privacy in one of his rulings on the D.C. Circuit.
When Judge Bork was nominated on July 1, 1987, Sen. Edward Kennedy said that “Robert Bork's America is a land in which women would be forced into back-alley abortions, … rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”
Everything about Judge Barrett tells us that her America would be the same.