Until now, one way to describe extreme conservatives was to call them “right of Attila the Hun.” Amy Coney Barrett is even further along that spectrum — she is right of Antonin Scalia.
Barrett, President Donald Trump’s nominee to the Supreme Court, once worked as a law clerk for Scalia. Whereas the late Supreme Court justice referred to himself as a “faint-hearted originalist,” who was willing to allow case precedent to influence what he believed to be the original intent of the framers of the Constitution, Barrett makes no such concession. She wrote in a 2013 law-review article that stare decisis — the principle that courts should follow prior case decisions — is a “soft rule,” not an “inexorable command,” with “constitutional cases the easiest to overrule.” In that same article, Barrett went on to say words that should shake fear into the two-thirds of Americans who support the Court’s 1973 decision to protect abortion rights in Roe v. Wade: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution than a precedent that she thinks clearly in conflict with it.”
During her confirmation hearings to become a judge on the Seventh Circuit Court of Appeals, Barrett pledged to keep her beliefs as a devout Catholic separate from her legal opinions. She has only been a federal judge since 2017, and her record on abortion so far is spare. She dissented in a case that struck down an Indiana law that banned abortions on the basis of the sex or disability of a fetus. Before becoming a judge, Barrett was a law professor at Notre Dame Law School, where she was a member of an anti-abortion group called Faculty for Life. With her beliefs about abortion combined with her views on stare decisis, the precedent of Roe faces a real risk of being overturned should she ascend to the nation’s highest court.
In addition to reproductive rights, other issues that had seemed settled by Supreme Court precedent, such as the constitutionality of the Affordable Care Act and marriage equality, may become fair game for judicial review with Barrett on the Court. Barrett has expressed conservative views on immigration, gun rights, and discrimination. If the 2020 election is contested and ends up before the Supreme Court, the newest justice could cast a vote that decides the outcome.
Because justices are appointed for life and removable only by impeachment, the stakes are high whenever a vacancy occurs. Justice Ruth Bader Ginsburg, whose death last week created the opening Barrett has been nominated to fill, served on the court for 27 years until her death at age 87. If confirmed, the 48-year-old Barrett could serve on the court for four decades or more, stamping an indelible mark on American life.
As a result, Barrett’s confirmation becomes a critically important moment leading up to the 2020 election and beyond. But some Democrats have threatened to boycott the hearings, citing Republican hypocrisy in conducting confirmation hearings during an election year. A boycott would permit confirmation with only cursory questioning of Barrett by GOP senators, and would do a great disservice to our country. Barrett should not be confirmed to the Court without careful public scrutiny of her extreme views. Even if she ultimately receives the 51 votes she needs for confirmation, her record should be laid bare before the electorate so that they can fully understand the consequences of their vote for president in 2016, and the risks at stake in the 2020 election. Elections have consequences, and all Americans should be made to appreciate the consequences of Trump’s presidency.
To be sure, Democrats have a legitimate beef with Senate Republicans. The nomination of Barrett is the second part of a one-two punch by GOP leaders. When Scalia died in February of 2016, Senate Majority Leader Mitch McConnell proclaimed it too close to a presidential election to confirm a successor nominated by President Barack Obama in the last year of his term. McConnell insisted that voters decide who would choose the next Supreme Court justice, rather than allowing a “lame-duck president” to fill the vacancy, even though the election was nine months away. “The American people are perfectly capable of having their say on this issue, so let’s give them a voice,” he said in March of that year. “Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.” And so, Obama’s nominee, Judge Merrick Garland, never even received a vote.
Now, in 2020, with the death of Ginsberg occurring less than two months before a presidential election, McConnell is only too eager to confirm Trump’s nominee. Senate Republicans are pushing forward even though Americans, by a 57-38 margin, prefer that the next president make the appointment. In their zeal to control the composition of the Court, Republicans have engaged in a hypocritical power play that threatens to undermine the legitimacy of the judiciary.
If Barrett is confirmed, then the Court will include five justices — a majority of the Court — who will have been appointed by presidents who did not win the popular vote. In addition to Barrett, Trump appointed Neil Gorsuch and Brett Kavanaugh. George W. Bush, who lost the popular vote to Al Gore, named John Roberts and Samuel Alito. When justices are installed by presidents who lack democratic support, at some point, the Court itself loses public confidence, and its decisions lose the respect of the people. The Court risks being seen as just one more cog in a political machine.
But the stakes of Barrett’s appointment are too high to abstain in the interest of principle. Barrett needs to be put under a microscope not only to determine whether she is fit to serve on the Court, but also to fully reveal to the public the potential consequences of the Republican agenda.
In Barrett, we can expect a justice who will decide cases from a conservative worldview, while being even less bound to precedent than her former boss and mentor. She has written that Scalia’s adherence to precedent at the expense of originalism “in a crunch,” simply proved that he was “human,” and prone to occasional mistakes. “Nothing is flawless,” she wrote, “but I, for one, find it impossible to say that Justice Scalia did his job badly.” Barrett learned at Scalia’s elbow, and is ready to take his jurisprudence one step further.