On Day Two of her confirmation hearing for a lifetime appointment to the U.S. Supreme Court, Judge Amy Coney Barrett laid down a few markers about her judicial approach: She would not say that Roe v. Wade, Planned Parenthood v. Casey, Obergefell v. Hodges, and Heller are “super”-precedents, because each is subject to challenges. She did claim that Brown v. Board of Education and Marbury v. Madison are settled law. She testified that judicial recusal rules for her participation in any case in which Donald Trump has pledged her vote is with him would turn not on the mere appearance of impropriety, but on whether she had personally discussed those cases with White House staff. Asked by Sen. Dianne Feinstein whether there was any basis in federal law from which a president could delay an election (there is not), she demurred, stating that she was not a “pundit.” And asked by Sen. Dick Durbin why she had written to expand gun rights to nonviolent felons while denying voting rights to former felons, she claimed that the former were individual rights, but the latter were “collective.”
None of this is surprising. Nor is it a surprise that Barrett claims that originalism and original public meaning are constitutional methodologies that derive from neutral principles that rein in “judicial activism,” thus allowing her to arrive at mechanistic, restrained results. This was Justice Antonin Scalia’s interpretive mode as well, and it’s a long-held proposition for a conservative legal movement that claims moral neutrality as to unfortunate outcomes, even when the result is a frozen trucker unable to leave his rig, women losing access to contraceptive care, or, as Barrett testified today, millions of people being thrown off their insurance plans after the court decides the narrow, technical “severability” question that could deny millions of people protection for preexisting conditions.
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That “originalism” almost always leads to profoundly conservative legal outcomes, in all three of its iterations of recent decades, is not in question. As Durbin pointed out in his colloquy with Barrett, the Framers of the original Constitution sought to protect white male landowners and to disadvantage slaves, women, and others. Its so-called neutrality always starts from the proposition that with great power comes access to yet more great power. To pretend otherwise is sophistry. Originalism itself has come to embrace radical judicial activism, as Justices Clarence Thomas and Samuel Alito now evince. “Originalism” qua “originalism” and “textualism” qua “textualism” also tell us close to nothing about how Barrett approaches questions of statutory interpretation. And while the sophomoric claims that originalism solves everything apolitically are good sound bites for Sens. Ted Cruz and Josh Hawley, nobody who thinks in a rigorous way about judicial interpretation believes such platitudes. There is nothing “apolitical” in demanding originalist outcomes with respect to gun rights and not with respect to equal protection of the law.
Hiding behind “originalism” allows Barrett and Senate Republicans to repeat that law is a neutral science, while also conveniently arriving at the host of policy outcomes favored by the Federalist Society, the Koch brothers, and nameless donors. Which is why efforts to present Barrett as the magic constitutional love child of Antonin Scalia and Ruth Bader Ginsburg at these hearings, and in her rollout, is also rank sophistry.
The ghosts of both justices loom large in the hearing room as symbols of lost bipartisanship and comity, but also because Republicans keep trying to cloak Barrett in the mantle of Ginsburg’s legacy—while quietly banking on her to dismantle that legacy. Over and over we hear that Barrett is the glittering 2.0 version of Ginsburg’s lifework, and yet that claim is deeply distorting. Ginsburg wasn’t a proponent of “originalism” or of “original public meaning,” in her legal advocacy or in her constitutional craftsmanship. That was precisely because she didn’t believe the Framers to be perfect, and she didn’t believe that drafters of statutory language were neutral. Her entire worldview was predicated on the idea that the Constitution and statutory language were necessarily imperfect—and frequently blind to outsiders, to the vulnerable, and to the politically powerless.
If there is a throughline in Ginsburg’s constitutional approach, it was an effort to make invisible people visible to her colleagues at the court and, if that failed, to the country and the world. Whether it was male caregivers trying to benefit from tax laws, or female cadets at Virginia Military Institute, or Lilly Ledbetter being denied a remedy for persistent, systemic pay discrimination, or the workers of Walmart, or the employees of Hobby Lobby, or minority voters in the South, or immigrants, prisoners, LGBTQ Americans, or Milwaukee voters vainly attempting to vote during a pandemic, Ginsburg saw them, and understood that her actions would influence their lives. This isn’t “judicial activism” or “legislating from the bench,” but rather a lifelong effort to broaden the notion of equality to include marginalized, powerless, forgotten, and invisible groups. You may agree or disagree with the merits of that constitutional project, and reasonable people do disagree. But you actually don’t get to drape yourself in the noble mantle of it while your work has largely been a project to render the powerless and invisible yet more so. I was struck by Barrett’s description of her own children’s lives—she described them as “cocooned” from the racism that took the life of George Floyd. Ginsburg could be blind about race in her own chambers, but she at least understood that her own first loyalty lay with Americans who were not fortunate enough to be cocooned from injustice.
Barrett’s record has proven to be a perfectly coherent and intellectually rigorous effort to adhere to an originalist’s view of the world. In so doing, she has worked to expand gun rights, limit abortion protections, and undermine the rights of workers, asylum-seekers, and immigrants. But to call it anything akin to what Ginsburg did with her judicial authority is false. And to suggest that it’s in any way tempered because Barrett is a person of integrity who feels compassion or empathy for the millions of people who may lose access to affordable health care or reproductive freedom as a result of her rulings is absurd. Originalism—as Sen. Mike Lee showed in his questioning of Barrett—is almost always going to lead to outcomes that will suppress minority voting, harm vulnerable communities, and privilege whites, Christians, and males. One can claim that racism and homophobia are personally abhorrent and still consistently arrive at racist and homophobic results. I’m not sure the former claims are much comfort to the people whose lives are affected.
That doesn’t make Barrett homophobic or racist. It’s just that the toolkit she employs will not do anything to protect Americans against homophobic or racist laws or policies. It further means that the toolkit she uses to analyze the cases she will not designate as binding “superprecedent”—from Casey to Obergefell—will not be seen through the eyes of vulnerable minorities. She may say that the Affordable Care Act turns on a technical question about “severability,” or that she feels empathy for tens of thousands of disenfranchised felons in the South, or for Black voters who lost their fundamental rights after Shelby County, but she is also saying that the analytical tools she will deploy won’t be set up to help them. It won’t be anything like the toolkit deployed by Ginsburg. As Barrett made clear Tuesday, her originalism is neutral, mechanistic, and hypertechnical. It’s what John Roberts lauded as calling “balls and strikes” and what led Neil Gorsuch to rule that a trucker had to stay with his rig because the law said so, even if it meant freezing to death. And it’s what led Barrett to testify on Tuesday that it is not her responsibility to fix society’s problems.
It is certainly not Barrett’s job to fix problems. But if she joins with the majority of the court to strike down the ACA, or to limit Roe, or to hollow out Obergefell, she will be responsible for significant human suffering. She said that before she files her opinions, she reads them through the eyes of the losing party. She did not explain why she feels it is most appropriate to consider their suffering at the end of the process, rather than at the beginning. I think she meant it to sound humanizing, but I also think it will be cold comfort to immigrants, women, workers, and the communities who rely on the courts as a means of accessing justice, and who will most likely, if Barrett is seated on the bench, be denied this justice. Barrett has a constitutional worldview, and that is her prerogative. It may be a mechanistic, automatic, and even on occasion “humble” judicial enterprise. But it will have a real material effect on Americans’ lives, and no amount of empathy and compassion or quotes from Ginsburg will reverse those consequences.
