Advertisement

Op-Ed: If Amy Coney Barrett is nominated and confirmed, it will be a shame for the Supreme Court and the country

The Supreme Court building at night.
President Trump is shaping the Supreme Court into one that represents views on the extreme edge of the legal profession.
(Mark Wilson / Getty Images)

Get ready for the profound changes an even more conservative Supreme Court will make in the law and in American life.

President Trump’s short list of candidates to fill Ruth Bader Ginsburg’s seat — his third Supreme Court selection in four years — are all judges on the U.S. Court of Appeals: 7th Circuit Judge Amy Coney Barrett, 11th Circuit Judge Barbara Lagoa and 4th Circuit Judge Allison Jones Rushing. They also all have ties to the Federalist Society, the club of ultraconservatives that’s been calling the shots for all of Trump’s choices for the federal bench.

In this race, Barrett figures to win going away.

Lagoa’s chief credentials are recommendations from prominent Florida Republicans such as Rick Scott and Matt Gaetz. She is Cuban American and a resident of Florida, an indispensable state for Trump if he is to be reelected. But I’ve read about 50 of the 400 opinions she has written in 15 years on the bench, mostly in the state intermediate courts. They are plodding and routine; she doesn’t have Supreme Court chops.

Advertisement

Rushing is 38 years old, which would make her the youngest justice on the court in more than 200 years. That’s an automatic source of controversy, as is her relatively bumpy ride to her current job, when she had to defend her membership in a conservative Christian organization that the Southern Poverty Law Center has identified as a hate group.

Several years after our clerkships ended, Justice Ginsburg performed our wedding, wishing us the same kind of happiness she had shared with her husband, Marty.

Like Barrett, Rushing clerked for a conservative luminary (she for Justice Clarence Thomas, Barrett for Justice Antonin Scalia), but her qualifications don’t come close to Barrett’s.

Barrett’s decisions and law review articles reveal a topnotch legal mind. At age 48, she too would be the court’s youngest member but she can’t be dismissed as callow, especially given her full career as a tenured Notre Dame law professor. She checks all the ideological boxes for the Federalist Society cabal, and her strong personal commitment to fundamentalist Roman Catholicism thrills religious conservatives. Remember when Sen. Dianne Feinstein tried to question Barrett about how her faith might color her decisions during her confirmation for the court of appeals? “The dogma lives loudly within you,” blurted Feinstein, providing fodder for the culture wars and burnishing Barrett as a right-wing religious martyr.

Advertisement

For these reasons, Barrett is the distinct favorite to get Trump’s nod, and with just two Republicans willing to wait for the outcome of the election, the odds are that her nomination would be jammed through in short order.

So what might the country get from Justice Barrett? For starters, a monolithic majority of at least five rock-ribbed conservatives on the high court, and a near hammerlock on every important decision — on affirmative action, executive power, environmental protection and climate change, states’ rights, LGBTQ rights, gun control and, of course, abortion rights, for many, many years to come.

Chief Justice John G. Roberts Jr., a moderate conservative who emerged last term as a champion of precedent, a swing vote and possibly the most powerful chief since John Marshall, will become almost an afterthought. And the reliably liberal justices? A permanent dissenting minority.

This kind of rebalancing in itself, before any decisions are rendered, will have a huge effect on state legislatures and the courts of appeals. Red states will be ever more emboldened to pass reactionary statutes — such as Alabama’s attempt last year to make virtually all abortions in the state a felony, subjecting doctors who perform them to up to 99 years in prison — knowing that an extreme right-wing Supreme Court has their back.

Advertisement

Barrett has announced her personal “conviction” that “life begins at conception.” It is very hard to imagine that she believes Roe vs. Wade was correctly decided. She has written, dubiously, that the high court’s reasoning “essentially permitted abortion on demand.”

Perhaps more importantly, and less discussed, Barrett, like Justices Samuel Alito and Thomas, has articulated a relatively weak view of stare decisis, or respect for Supreme Court precedent. Roe owes its continued vitality to stare decisis. In her time at Notre Dame, Barrett has made a kind of academic subdiscipline of undermining the doctrine. In four separate articles, she has suggested, among other attacks, that it sometimes violates the due process clause and that it stands in tension with an “originalist” reading of the Constitution.

In confirmation hearings, Barrett would of course advance the now-standard bromides about respect for Roe as a super-duper precedent, but I would expect her to combine with Thomas, Alito, Gorsuch and Kavanaugh to achieve the far right’s holy grail of overruling Roe.

And that may just be the beginning of the wrecking-ball jurisprudence.

Advertisement

Barrett has to be counted as a likely vote to strike down the Affordable Care Act, which is up for Supreme Court review for the third time in December, and which is another far-right bugaboo. In a 2017 law review article, she trashed Roberts’ 2012 decision upholding Obamacare as having pushed the statute “beyond its plausible meaning.”

Then there’s the 2nd Amendment. In 2019, Barrett voted (in a 7th Circuit dissent) to strike down a law that bars convicted felons from owning guns, saying that the Constitution requires proof that the individual in question is dangerous.

And immigration: She dissented from an opinion striking down a Trump immigration policy denying residency to immigrants deemed likely to require government assistance.

You can see why the Federalist Society loves Barrett and progressive groups fear her. She would complete a Supreme Court supermajority — put in place by a Republican Party that has won the popular vote only once in the last seven presidential elections — that represents views on an extreme edge of the legal profession.

Advertisement

Barring a miracle, the court Trump is fashioning will be viewed for decades with anxiety and derision by the majority in a society that has traditionally looked to it as the ultimate bulwark against government oppression. That would be a shame for the court, but it will be a catastrophe for Americans whose liberties will be on the chopping block.

@HarryLitman


Advertisement