Supreme Court nominee Amy Coney Barrett with Vice President Mike Pence. Photo courtesy of The Atlantic.
ALEXANDRA CORDILL | OPINION COLUMNIST | acordill@butler.edu
There is no doubt that Amy Coney Barrett’s nomination for the Supreme Court is divisive. It has been met with protests, angry tweets and ire from the media in general.
Barrett is a right-wing Catholic in diametric opposition to her would-be predecessor, Ruth Bader Ginsburg. RBG was a figurative giant in the realm of women’s rights. Throughout her career as a justice in America’s highest court, Ginsburg heard over 300 cases on women’s rights and consistently ruled in the best interests of women while upholding the law. In contrast, Amy Coney Barrett places her own opinions and values over the best interests of over half of our nation’s population.
Early in her law career, Barrett clerked for Justice Antonin Scalia, the notoriously-conservative Supreme Court justice at the time. To put things into perspective, 36 people per year are given the honor of clerking for a Supreme Court Justice. After the clerkship, Barrett became a professor at Notre Dame law school. This impressive resume set her on a strong path towards originalism — the idea that all cases should be interpreted as the founding fathers would have, using the Constitution as the measuring stick for all case decisions.
In contrast, other Supreme Court Justices tend to subscribe to the idea that the Constitution is a living document. Therefore, the interpretation of it should be adapted to the current time period.
In 2017, President Trump appointed Barrett to the Seventh U.S. Circuit Court of Appeals in Chicago, where she currently serves. During her 2017 confirmation hearing, Barrett was catapulted to the rank of conservative celebrity due to her apparent victimization by the “anti-religious” liberal left.
While it is common practice to discuss a potential judge’s political leanings and how these beliefs will affect their opinions on the bench, the Catholic right took great issue with how Senator Feinstein questioned Barrett’s religious beliefs, as the subject’s religious alignment is not considered fair game. By directly criticizing Barrett’s Catholicism rather than her political views, Feinstein was met with the ire of the American Catholic community — a group that, comically enough, has historically looked for any excuse to label themselves as oppressed.
Senator Feinstein’s accusations, while inappropriate for the confirmation hearing, were not unfounded. Barrett is a member of the controversial far-right Catholic group, People of Praise. Among other things, People of Praise is staunchly anti-abortion and believes that men are divinely appointed the head of the household, values reminiscent of the ‘50s. As the U.S. looks more and more like a twisted dystopia, People of Praise’s potential to influence the Supreme Court would only further our downward spiral.
Barrett claims that she does not let her personal beliefs cloud her judgment, but that is hard to believe considering the examples set by other justices. Both Justice Thomas and Justice Scalia can be considered right-wing based on their political leanings, and both have let their personal beliefs seep into their dissents.
In Justice Scalia’s dissent of Lawrence v. Texas, a decision that struck down a Texas anti-sodomy law, he directly invokes the concept of morality in law. By citing this premise, Scalia brings in his own concept of morality.
Justice Thomas is no different. In his dissent on the case of Utah Highway Patrol Ass’n v. American Atheists, Inc., he writes that the Establishment Clause of the First Amendment does not apply to states, meaning that by his interpretation of the Constitution, individual states could endorse a statewide religion. These decisions represent a pattern of right-wing justices infusing their own opinions into the decisions they make on the bench.
Many have brought up concerns that Barrett’s ideologies would affect her opinions that come off the bench. Her contemporaries — such as Paolo Carozza, a Notre Dame law professor that worked closely with Barrett — disagree.
It is important that we take this quote with a grain of salt. Notre Dame is a historically Catholic university, so her colleagues may not be the best people to vouch for this facet of her personality. However, if we ignore this fact and look at Barrett’s track record we see that she consistently trips over her own ideologies to come to a judicial decision.
“It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law,” Barrett said during her 2017 confirmation hearing. She has a history of restating this idea whenever she is questioned about her faith compromising her judicial decisions, but she can never seem to back it up with action.
Both of these quotes seem to display Barrett as a level-headed judge who doesn’t let her own ideals get in the way of her judicial decision-making. However, her opinions tell a different story.
Abortion
Barrett has publicly stated that Roe v. Wade should not be overturned, citing 45 years of precedent. But she has made it clear that she is in favor of severely stripping it by allowing states to create increasingly strict laws determining who can and cannot seek an abortion.
As a staunch originalist, Barrett has upheld decisions that go against her Catholic beliefs — namely, that abortion is inherently sinful and members of the church should go to any lengths to prevent them. This typically looks like harassing women going into Planned Parenthood and similar clinics, or even spreading their dogma on a college campus.
It is extremely unlikely that the right to abortion will be repealed. However, it is conceivable that red states will be allowed to impose more restrictions on abortion, effectively outlawing it. These restrictions have been narrowly overturned in the past, but with Barrett on the court, the restrictions would most likely be upheld.
Affordable Care Act
If confirmed, Barrett would likely rule against the Affordable Care Act, especially since an argument is scheduled to be heard in the Supreme Court a mere week after the election.
Previous originalists like Scalia have voiced their opposition to the act and its apparent violation of the Constitution. They see the individual healthcare mandate as an overreach of the Congressional Commerce Clause. The repeal of the Affordable Care Act would leave millions of people with a preexisting condition without healthcare. This would be particularly tone deaf of the court, considering COVID-19 is now considered a preexisting condition.
Currently, the individual healthcare mandate has been suspended after being found unconstitutional by a federal judge. However, the ACA is a completely legitimate extension of Congress’ power to tax. By overturning the ACA as a whole, the U.S. would lose out on a host of crucial benefits. The ACA both slows the rise of healthcare costs by covering all preventative medicine and increases revenue for insurance companies by letting anyone 26 or younger stay on their parents’ healthcare plan. If the ACA were to be ruled unconstitutional, the Supreme Court’s originalists would be directly opposing their own doctrine.
LGBTQ+ Rights
It is no secret that the dogma that Amy Coney Barrett subscribes to is in opposition to gay marriage. The landmark 2015 decision, Obergefell v. Hodges, allowed non-heterosexual couples to be married. On October 5, 2020 the Supreme Court declined to hear the case of Kim Davis, a county clerk who was jailed for refusing to issue a marriage license to a same sex couple due to her religious beliefs. Davis was called “one of the first victims of this Court’s cavalier treatment of religion” by Justices Thomas and Alito. In addition, they claimed the court made a mistake by ruling in favor of same sex marriage.
This strong rhetoric is only reinforced by the fact that of the five concurring justices in that case, only three still sit on the bench. This combination would create a perfect storm to rescind the rights of LGBTQ+ people if Barrett were to be confirmed. As a person, Barrett leaves a lot to be desired. But as a judge, she is a right-wing conservative wrapped up in an originalist package. She seems to conveniently find constitutional fault in cases that go against her religious beliefs.
It is clear that Barrett’s nomination was a political move. The GOP is moving swiftly in an attempt to confirm her before the Nov. 3 election. This is an extremely hypocritical decision considering the rancor that was directed at Obama following his nomination of Merrick Garland to fill Scalia’s vacancy prior to the 2016 election.
With the increase in absentee voting this year, it is becoming a possibility that the election will need to be decided by the Supreme Court. If Barrett is confirmed, Trump’s deck is effectively stacked.
A judge should be an even-keeled person educated on the law that does not let personal beliefs cloud their judgement. Amy Coney Barrett is not this judge.
