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Supreme Court watchers worry Amy Coney Barrett’s ‘originalism’ could uphold racist policies

USA TODAY logo USA TODAY 10/30/2020 Joshua Adams, Special to USA TODAY
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Amy Coney Barrett's confirmation Monday to replace the late Ruth Bader Ginsburg on the U.S. Supreme Court represents an ideological shift that has civil rights activists worried.

They fear not only what the 6-3 conservative majority could mean for their progressive agenda, but also how the core philosophy guiding Barrett’s rulings – originalism – will affect diverse communities.

Originalism is a judicial philosophy that positions the Constitution as a text with a fixed, “original” meaning. Adherents stand in contrast to “living Constitutionalists”, who view the document as one that evolves and adapts to changing times regardless of whether it is formally amended.

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Originalist judges believe that allowing current socio-political struggles to influence their rulings would be counter to what the Founding Fathers intended. They claim to exercise “judicial restraint,” leaving the passing of laws to the legislature.

During her confirmation hearing, Barrett described what she believes. “I interpret the Constitution as a law, I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it is not up to me to update it or infuse my policy views into it,” she said.

a close up of a woman: Judge Amy Coney Barrett delivered her opening statement in her Supreme Court confirmation hearing. © AP Judge Amy Coney Barrett delivered her opening statement in her Supreme Court confirmation hearing.

But activists and experts say people of color were never included in the founders’ documents, so originalist decisions often ignore their needs and leave their rights unprotected. They argue that Supreme Court justices have cited originalism to uphold segregation and other racist policies, curtail affirmative action and thwart protective measures, such as the Voting Rights Act, that remedy historic injustices.

Jennifer Epps-Addison, network president and co-executive director at the Center for Popular Democracy in New York, says that Barrett’s confirmation also sounds the alarm for immigrants, women, LGBTQ families and people with pre-existing conditions. She fears that the solidly conservative court will now unravel the progress these communities have made.

“For the communities we represent, this isn’t a just political game or an abstract conversation about legal scholarship,” says Epps-Addison. “This is about people’s lives.”

'Fixed' approach, room for bias

Barrett was a clerk for Justice Antonin Scalia, whose philosophy she shares. But critics of originalism argue that the Constitution has no single original intent.

“It was framed by dozens of ideas, including (those of) abolitionists and slaveholders,” says Gloria Browne-Marshall, a professor of constitutional law at John Jay College of Criminal Justice. “It is a compromise document, because it was a compromise of the different viewpoints and ideas that helped create it. There is no singular viewpoint that created the Constitution.”

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Originalists also assert that they leave the passing of laws to the legislature and believe the only proper route for change is Constitutional amendment. Samuel Spital, director of litigation at the NAACP Legal Defense and Educational Fund, says the Constitution has language that is often quite broad and aspirational, particularly as amended with respect to equality and liberty. He argues that in sticking to a “fixed” meaning, originalists dismiss the fact that the most prominent cases center on the amendments that alter or update that meaning – 27 since the Constitution became the law of the land in 1789.

“What is difficult and potentially dangerous about originalism is, depending on how it is interpreted, it can allow for the biases of previous generations to be frozen in time even when the text of the Constitution actually supports civil rights and equality,” Spital says. 

Donald Trump wearing a suit and tie: President Donald Trump and Justice Amy Coney Barrett at the White House in Washington, D.C., on Oct. 26, 2020. © Patrick Semansky, AP President Donald Trump and Justice Amy Coney Barrett at the White House in Washington, D.C., on Oct. 26, 2020.

At the time of the Constitution’s ratification in 1787, Black people weren’t considered fully human, indigenous people weren’t American citizens, and women weren’t full citizens. In Dred Scott v. Sandford, for example, many legal scholars argue that the 1857 ruling applied an originalist rationale for the case’s decision.

Dred Scott was an enslaved person who was sold and moved between the slave state of Missouri and the free state of Wisconsin. He and his wife sued for their freedom, appealing to the “once free, always free” doctrine: In Missouri starting in 1824, enslaved people could sue if they had been taken to live in states that did not recognize slavery. Justices – many from pro-slavery states – decided against the Scotts, arguing that slaves and their descendants had no standing in court because according to the original Constitution, they could not be U.S. citizens. 

The adoption of the 13th Amendment ending slavery and the 14th Amendment granting full citizenship from birth effectively overturned the Dred Scott decision. But in Bradwell v. State of Illinois, the Supreme Court ruled in 1873 that in denying Myra Bradwell a law license because she was a woman, Illinois hadn’t violated the 14th Amendment. In essence, she couldn’t get a law license because no woman had gotten it before, the Court didn’t want to provide a right “never contemplated by the legislature,” and that “God designed the sexes to occupy different spheres of action.”

Justices Scalia, Clarence Thomas, Samuel Alito and Neil M. Gorsuch all follow the philosophy of a “fixed” Constitution. The liberal wing of the court is now helmed by Justice Sonia Sotomayor, who has written more dissents than any other justice. Though Scalia is often regarded as the most prominent originalist in recent times, Browne-Marshall says that the seeds of originalism lay elsewhere. 

“The ‘originalism’ concept is an offshoot of the opposition of desegregation and the civil rights movement,” Browne-Marshall says.

She argues that its modern foundation comes from the conservative movement broadly, but Justice William Rehnquist's segregationist views specifically. Rehnquist, who led the court from 1986 to his death in 2005, served 33 years on the high court. He wrote a memo when he was a law clerk in 1952 arguing that the court reaffirm Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation through “separate, but equal” accommodation.

He later advocated for a constitutional amendment to continue segregation in school districts in defiance of the 1954 Brown v. Board of Education ruling, and as an associate justice he dissented against the desegregation of Bob Jones University in 1983.  

Reagan’s Senate-rejected nominee Robert Bork, a fierce proponent of originalism, was critical of court rulings on desegregation of businesses and school districts, the banning of literacy tests for voting, and the striking down of restrictive covenants that prevented integration in housing.

In more recent years, the 2013 decision in Shelby County v. Holder gutted the Voting Rights Act of 1965 by striking down “preclearance”—which required areas of the country with a history of discriminatory voting laws and restrictions to get the federal government’s approval before passing new ones. The requirement was meant to protect the voting rights of African Americans. Critics claim that this 5-4 ruling was decided through an originalist lens.

Conservatives defend originalism

Conservatives argue the critiques of originalism as racist or sexist are caricatures. In a National Review article, senior writer Dan McLaughlin argued that looking at the Constitution through originalism shows how it “was carefully written to allow states to ban slavery.” He wrote that “Abraham Lincoln – who had spent the years before the war arguing for an essentially originalist view of the Constitution, and criticizing the Dred Scott decision in those terms – fought the war precisely to preserve the original Constitution.” Justice Gorsuch also disagrees with the idea that the Dred Scott decision is originalist.

Originalist judges view themselves as having an apolitical approach to the Constitution, and that it’s their duty to not legislate from the bench. University of Miami law professor Mary Anne Franks argues that the opposite is true.

a group of people standing in front of a crowd: People demonstrate for and against the nomination of Amy Coney Barrett to the Supreme Court, Monday, Oct. 26, 2020, outside the Supreme Court on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin) ORG XMIT: DCJM103 © Jacquelyn Martin, AP People demonstrate for and against the nomination of Amy Coney Barrett to the Supreme Court, Monday, Oct. 26, 2020, outside the Supreme Court on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin) ORG XMIT: DCJM103

“Clearly what they are trying to indicate with the rhetoric of pure meaning, just reading the text, and honoring the Founding Fathers is that, unlike other people, we are not political in our judgements and readings of the Constitution, when in fact the people who invoke orginialism tend to be the most politicized judges and justices,” Franks says. 

Franks sees originalism as a “fraudulent” attempt to cover the political desire to see the Constitution through a fundamentally conservative lens, which justifies rulings that roll back the rights of people of color, women, immigrants and other groups. Though Barrett's judicial record is not long – she was an appellate judge for only three years – the New York Times called it “almost uniformly conservative” in cases touching on issues such as abortion, gun rights, discrimination and immigration. 

People of color are among the many voters who switched to mail-in ballots for fear of contracting the coronavirus. Controversy over budget cuts and long delivery times at the post office cast a shadow over the court, which recently ruled that ballots in Wisconsin that come after the Election Day deadline won’t count. With crowded polling places and disproportionately long lines in Black and brown communities, many voting rights advocates see this as a form of vote suppression. If there are lawsuits and the election is contested, the new Supreme Court could issue rulings that decide the winner.

On immigration, Barrett dissented against a U.S. District Court decision that temporarily blocked a Trump administration policy that makes it more difficult for immigrants to get green cards if they have relied on public assistance programs or are deemed to be a "public charge." In Yafai v. Pompeo, Barrett agreed that the wife of a U.S. citizen could not challenge her visa application denial. With the Supreme Court weighing on the Trump administration various immigration restrictions and travel bans, Barrett is likely to side with the other conservative justices on these matters. 

Immediately after Ginsberg’s passing, pro-choice advocates raised alarm about the potential weakening or outright overturn of Roe v. Wade. While all women who are pro-choice have a stake in a potential overturn, women of color are uniquely affected. Pro-choice advocates contend that narrow limits to abortion have effectively made it harder for poor women and women of color to get safe abortions than their richer or whiter counterparts. And often tied into rulings against abortion is the decrease in funding to facilities that provide women with health screenings, prenatal and pregnancy care, contraception and more. 

But one of the most salient concerns is about Barrett’s position on the Affordable Care Act. The case on whether the ACA can remain without its tax penalty is set for Nov. 10, a week after the election. She has been critical of past rulings on the ACA. If the court rules that zeroing out the ACA’s individual mandate makes it unconstitutional, more than 20 million Americans will lose coverage.

An inconsistent philosophy

Epps-Adison sees issues like healthcare and immigration as linked.

“We know that our immigrant communities have been disproportionately affected by COVID-19. They make up a large percentage of ‘essential workers’ in this country,” Epps-Adison says. “So we are really particularly concerned about a community of folks who have been so impacted and are struggling coming under the auspices of an extremely hostile Supreme Court.”

If Barrett and other conservative justices overturn the ACA, it will likely have big ramifications in communities of color. According to the Center on Budget and Policy Priorities, the ACA helped cut the uninsured rate of non-elderly African Americans by a third. Overturning the ACA would put Black, Latino and Native communities – all of which suffer from higher uninsured rates, and higher rates of diabetes, obesity, high blood pressure, hypertension and more – at risk.

Losing coverage, particularly during the pandemic, would be a major blow to these communities. Black people and Latinos are disproportionately dying from COVID-19. In Chicago, three in four coronavirus-related deaths were Black or Latino, and in May, the Navajo Nation had the highest infection rate in the United States. In a recent CDC report, people of color have been the majority of fatal coronavirus cases in kids and teens under 21.

Many conservatives push back on this concern, pointing to President Trump’s signing of an executive order promise to protect pre-existing conditions. But in a recent interview with "60 Minutes," the president said he hopes the Supreme Court "ends it." 

The tenuous fate of the ACA and the lack of a Republican alternative plan leaves millions of Americans on edge. However, Franks argues that Barrett’s record may not offer much predictive power about how she and the other conservative judges will rule on any given case.

“How it plays out in any individual case is more complicated,” said Franks. “But part of it is (that) originalism isn’t a consistent policy. When conservatives are sure that a certain outcome is the right one, they’ll use originalism when it serves them and cast it aside when it doesn’t.”

The political lean of the Supreme Court affects many issues that divide America. It has long been a contested space for laws that have direct or indirect impact on the lives of African Americans and other people of color. If history is any indicator, Barrett’s originalism won’t be an exception.

“The fundamental problem (of originalism) is the people who wrote the Constitution were excluding most people in this country, and dramatically excluding black people and other people of color from what it meant to be a citizen,” Spital says. “That premise is harmful, regardless of the outcome of any current case.”

This article originally appeared on USA TODAY: Supreme Court watchers worry Amy Coney Barrett’s ‘originalism’ could uphold racist policies

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