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We Know Exactly How Amy Coney Barrett Will Unravel Roe

Slate logo Slate 10/11/2020 Dahlia Lithwick
a person posing for the camera: Judge Amy Coney Barrett on Oct. 1 in Washington. Anna Moneymaker/Pool/Getty Images © Provided by Slate Judge Amy Coney Barrett on Oct. 1 in Washington. Anna Moneymaker/Pool/Getty Images

President Donald Trump and Republicans in the Senate would like to have it both ways with respect to abortion rights. Having run for four years on the explicit promise to seat judges who will “automatically” strike down Roe v. Wade, Trump—for whom the sanctity of life appears to be an ever more complicated thing—also claimed at the first presidential debate last week that nobody has even the remotest idea what his nominee, Amy Coney Barrett, might do if faced with such an opportunity. Senate Republicans are similarly pleading ignorance. In Iowa, Republican Sen. Joni Ernst insisted during a debate against her Democratic challenger that the likelihood Roe will be overturned if Barrett is elevated is “very minimal.” There seems to be great confidence in the fact that Barrett will find herself constrained by precedent—at least enough confidence to hopefully mollify voters.

I am firmly in the camp that holds that this is not a legitimate hearing coming from the people who denied Merrick Garland a hearing. Democratic senators shouldn’t engage Barrett on her record because nobody engaged Garland on his. That said, the public is entitled to know what Barrett thinks about issues on which she will presumably rule. And Barrett’s personal views on abortion are not in doubt. A Notre Dame Magazine article from 2013 described a lecture series at which Barrett “spoke both to her own conviction that life begins at conception” and to the ” ‘high price of pregnancy’ and ‘burdens of parenthood’ that especially confront women.” At the lecture she echoed Justice Antonin Scalia’s view that the judiciary should not be resolving this dispute, telling her audience, “It brings up an issue of judicial review: Does the court have the capacity to decide that women have the right to obtain an abortion, or should it be a matter for state legislatures?” she said. “Would it be better to have this battle in the state legislatures and Congress rather than the Supreme Court?”

Conservatives have long used such language to implicitly condemn what they view to be Roe’s usurpation of the democratic process. This week it was deployed to discredit marriage equality. The answer, to them, is “let the voters decide,” in much the same way they would have the voters decide on anti-miscegenation laws or school segregation.

As CNN has summarized, other speeches, letters, and writings have made it plain what Barrett thinks about when life begins. But those who would like to cast doubt upon their earlier promises about her pro-life bona fides now contend that none of these views would translate into her judicial decision-making. They point to her testimony at her 2017 confirmation hearing, at which time she explained that “Roe has been affirmed many times and survived many challenges in the court, and it’s more than 40 years old, and it’s clearly binding on all courts of appeals.” She went on: “And so it is not open to me or up to me, and I would have no interest in, as a court of appeals judge, challenging that precedent. It would bind.”

It’s worth pointing out that this logic does not necessarily hold now she is being considered for a seat on the Supreme Court, where she can vote to overturn any precedent she wants—and that in fact that caveat about being a “court of appeals judge” signals as much. But at any rate, it’s better to consider these comments in tandem with a speech Barrett gave in Jacksonville, Florida, in 2001. There she explained, with regard to the future of Roe, “I don’t think the core case—Roe’s core holding that, you know, women have a right to an abortion—I don’t think that would change. … But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics—I think that would change.” In other words, Barrett is letting you know that she might hesitate to overturn Roe and its progeny outright, but she’d gladly let states impose so many barriers that millions of women lose access as a matter of fact, if not law.

As Ruth Marcus and Garrett Epps have also noted, Barrett is almost singular among the current justices insofar as she does not seem to have a strong belief in precedent and stare decisis, the principle that judges are bound by the cases that came before. She has written extensively on this point, including in a 2013 law review article that “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 rather than a precedent she thinks clearly in conflict with it.”

In that sense, Barrett would seem to share Justice Clarence Thomas’ view of precedent. Thomas has openly declared that he does not believe justices should follow precedent if they think it’s wrong. That position, if held by multiple jurists, would defeat the entire purpose of adherence to precedent, ensuring that the law shifts wildly and unpredictably, and that no court or person can rely on a decision as fixed. No other sitting justice has endorsed this radical view. Barrett’s own mentor, Scalia, famously compared himself to Clarence Thomas by saying, in 2008, “I am a textualist. I am an originalist. I am not a nut.” But Barrett’s academic writings effectively endorse it.

Because arcane confirmation colloquies about the role of precedent tend to be bogged down in rote discussions about “super precedent” and tautologies and “balls and strikes,” a more useful measure of whether Barrett would be inclined to respect stare decisis might come from analyzing her judicial record.

Barrett has only been on the federal bench for three years, but in several cases she has evinced a readiness to go further than the Supreme Court has gone in analyzing existing precedent. Presumably if she is willing to do that on a lower federal court, it’s a fairly good predictor of how constrained she will be post-confirmation (and that would be: not constrained).

One case that has received a good deal of attention in this respect is a gun rights case, Kanter v. Barr, from 2019. That case was brought by a convicted felon named Rickey Kanter, who, under federal and state law, was barred from possessing firearms. His argument was that since his own conviction was for mail fraud, and not a violent crime, his gun rights should be reinstated. His case was dismissed in the lower courts, and in the 7th Circuit, the majority upheld this dismissal, finding the gun restrictions to be constitutional. But Barrett, in dissent, would have gone further—further even than the standard laid out in 2008 when the Supreme Court first found an individual right to own handguns in the Second Amendment. Even that decision explicitly said it should not “be taken to cast doubt” on felon possession laws. But Barrett found that nothing in the text suggested this was necessary in the case of nonviolent felons, writing, “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons.”

Barrett similarly went beyond the scope of current abortion doctrine in a pair of reproductive rights cases while on the 7th Circuit. In 2019’s Planned Parenthood of Indiana and Kentucky v. Adams, a three-judge panel struck down a parental notification law that did not include an option for judicial bypass for minors seeking abortions. Precedent holds that parental notification laws are permissible providing there is a judicial bypass, allowing minors to demonstrate that notifying their parents would not be in their best interest. Planned Parenthood was challenging the law before it could go into effect, on the grounds that it did not include judicial bypass, and the panel held the law was likely unconstitutional. The full 7th Circuit Court denied Indiana’s request to rehear the case en banc. Barrett joined the dissent, seeking to question whether laws could be enjoined before being allowed to go into effect, characterizing this area of law as “unsettled.” She joined Judge Michael Kanne’s dissent, in which he wrote that “preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.” Like Brett Kavanaugh, who would have just let clinic closures play out in Louisiana before agreeing to hear June Medical last year, the idea that unconstitutional abortion restrictions can just go into effect while a case is being litigated means a thumb on the scale for unconstitutional restrictions, every time.

In another reproductive freedom case, 2018’s Planned Parenthood of Indiana and Kentucky v. Commissioner of the Indiana State Department of Health, the court refused to rehear, en banc, a so-called anti-eugenics abortion restriction. That law is part of a project, led at the court by Clarence Thomas, to smear and stigmatize abortion based on false claims about the reasons for terminating a pregnancy. The law in this case thus aimed to prohibit any abortions on the basis of disability, race, or sex. The full panel struck down this restriction as a violation of Planned Parenthood v. Casey. Barrett joined a group of judges who dissented. She felt the restriction was permissible because “none of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”

Barrett planted a flag that went beyond current doctrine in other areas. In 2020’s Wallace v. Grubhub Holdings Inc., for instance, she wrote for a unanimous panel finding that Grubhub’s transportation workers are exempt from the Federal Arbitration Act. The statute says “any other class of worker engaged in foreign or interstate commerce” is covered by the FAA, but Barrett held that drivers were not transportation workers, nor were they a class of worker that engages in interstate commerce, even though Grubhub carried items across interstate lines.

Barrett has only served a brief stint on the federal bench. It shouldn’t be easy to find cases in which she was willing to go beyond where the Supreme Court and other reviewing courts or judges have gone. Yet she has done so, on several occasions, nudging the contours of the law past its current boundaries, suggesting that text and history don’t explicitly foreclose her interpretation or that stare decisis doesn’t include “anti-eugenics” regulations. The question for Barrett, then, should not be whether she would be bound by precedent once elevated to a court that crafts new precedent every day—we have enough information to know she wouldn’t be. The question is: Why didn’t she feel she needed to be guided by precedent even as she sat on the lower courts?

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