Vetting a potential Supreme Court justice 40 days before an election, when Republican senators swore we couldn’t do so 260 days before the last one, is, as the late Justice Ruth Bader Ginsburg might put it, a shandeh. A travesty. A farce.
But for individual rights, voting rights, LGBTQ equality, church/state separation, the rights of immigrants, everything Democrats have tried to advance this is no farce. It’s a tragedy.
Amy Coney Barrett, reportedly the leading contender to take over Ginsburg’s seat, is a highly intelligent Notre Dame law professor and, since 2017, a federal judge. She has written numerous scholarly articles on a wide variety of legal and philosophical issues, and unlike some recent nominees, appears to have a spotless ethical record. She is unquestionably qualified. But she is also an arch-conservative whose confirmation will permanently alter the American legal landscape. Yes, including the right to get an abortion—but not only that.
Take the Affordable Care Act. In 2017, Barrett wrote that in NFIB v. Sebelius, the 2012 case which preserved Obamacare, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” and expressed “skepticism of… the Roberts Court’s conception of judicial restraint [and] its approach to statutory interpretation.”
Given that several ACA decisions have been 5-4, with Roberts joining the Court’s four more liberal members (including Ginsburg), a Justice Barrett confirmation would flip that math and spell the end of Obamacare as soon as next year.
Or consider guns, another issue often decided in 5-4 cases. In a recent case, Judge Barrett dissented from a majority opinion upholding a ban on felons obtaining guns, saying that only violent felons should be banned, and that “all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right.”
That is an extremely narrow path for any gun regulation, especially since only “history and tradition” can justify a restriction. (History and tradition say very little about AR-15s, for example.)
Or consider immigration. Barrett cast the deciding vote to deport a legal resident of the United States who had lived here for 30 years because of a legal technicality. And she voted to uphold a Trump administration rule that a green card can be withheld from anyone who the government thinks might rely on public assistance.
One strains to find any ideological balance in this extensive record. With apparently no exceptions, Barrett has taken a right-wing position on every contentious case that has come before her.
Apply that standard to questions like voting rights, the ability of the government to enforce environmental law, presidential immunity from prosecution—all subjects of important recent Supreme Court cases—and the impact of a Justice Barrett becomes clear.
But it is Barrett’s views on social issues—abortion, primarily—that have received the most attention.
Whether these views are grounded in Barrett’s own religious faith—she is a highly conservative Catholic and a member of a lay group called People of Praise—deserves, and will receive, a separate analysis. As a matter of legal philosophy, she has made her positions clear.
On abortion, Barrett has criticized Roe v. Wade as “judicial fiat” and an “erroneous decision.” At a Notre Dame Law School event in 2013, she asked, rhetorically, “Would it be better to have this battle in the state legislatures and Congress, rather than the Supreme Court?”
That standard pro-life position, of course, decides the question before it’s even asked. State legislatures can’t take away constitutional rights—California can’t outlaw Christianity even if 90 percent of Californians want to do so. The whole point of Roe v. Wade is that, before fetal viability, the constitution forbids the government from regulating people’s bodies—women’s bodies in particular—even if a majority of people want to do so.
Every major pro-life organization in America hailed Barrett when she was appointed to the Seventh Circuit.
Barrett has made fewer statements regarding same-sex marriage. But in a 2016 lecture she agreed with the dissenters in Obergefell v. Hodges, the case that invalidated same-sex marriage bans, saying that while legislatures could grant same-sex marriage rights, it wasn’t for the courts to decide. “It’s really a who decides question,” Barrett said.
But as with abortion, this misconstrues the role of the courts in a constitutional system, which is precisely to protect fundamental rights against majorities, legislatures, and government entities. In our system, we don’t leave it up to the legislatures to decide to take away constitutional rights.
Let’s conclude with one imminent example.
In a few weeks, the eight-justice Supreme Court will hear a case about whether taxpayer-funded adoption and foster care agencies can discriminate against people based on religion, sexuality, or other factors.
Based on recent rulings in other cases, Justices Alito, Gorsuch, Thomas, and Kavanaugh are sure bets to allow this discrimination in the name of “religious freedom.” The government can’t tell religiously affiliated organizations not to violate their faith, after all.
Ginsburg, along with Justices Breyer, Sotomayor, and Kagan, were almost sure to find for the plaintiffs. These agencies are acting on behalf of the state, receiving taxpayer money. If they choose to take that money, they must act in the best interests of the child.
That would leave it up to the swing vote from 2018 to 2020, Chief Justice Roberts. He, too, has generally sided with religious discriminators rather than their victims, but not always.
But if you imagine Justice Barrett on the bench, it’s either 5-4 or 6-3, with the religious organization winning easily. It’s no longer a close case.
Multiply that by thousands of cases across the federal and state courts: religious exemptions for businesses turning away gay or trans people, further limitations on the equality of same-sex marriage, more restrictions on abortion providers and women who get abortions, religious exemptions to employment discrimination laws, funding of religious schools, and countless other issues.
Now you see why Senate Republicans are willing to make themselves look like idiots and hypocrites. And why Democrats will have to fight back next year.