The consequences of Ginsburg’s passing and Barrett’s elevation will be horrendous, and felt for generations. Here are five grim observations to help explain the scope of the anticipated nightmare.
1. Barrett Will Drive the Court Sharply to the Right
Every new Supreme Court justice alters the ideological orientation of the institution. Trump’s first two appointees to the high tribunal—Neil Gorsuch and Brett Kavanaugh—made the panel more conservative, and transformed Chief Justice John Roberts into the court’s most important and frequent swing voter.
Barrett’s confirmation will create a solid 6-3 conservative majority. And while Roberts will remain in the political center, the center itself will move decisively to the right.
Barrett was appointed to the federal bench by Trump in 2017. In her brief judicial tenure, she has authored about 100 opinions. In addition, as a professor at Notre Dame Law School, where she taught constitutional law and statutory interpretation until her 7th Circuit appointment, she wrote several influential academic articles and delivered a number of public speeches, creating an extraordinarily large paper trail.
Taken as a whole, Barrett’s body of work has been hostile to gun control, critical of Obamacare, antagonistic to employment and sex discrimination claims, and skeptical of consumer rights and economic regulation generally.
In criminal law, she has questioned the constitutionality of the “Miranda rule,” which requires arrestees subject to custodial interrogation to be advised of their right to remain silent.
In immigration law, earlier this year, she dissented from a 7th Circuit ruling that struck down the Trump administration’s “public charge” policy, which bars noncitizens from receiving a green card if federal authorities believe they are likely to apply for public assistance. (The policy has since been reinstated as a result of a decision issued by a different federal circuit court.)
Most distressing of all is Barrett’s outlook on abortion and the continuing viability of Roe v. Wade. While stopping short of declaring that Roe should be overturned, she has expressed support for state laws that impose strict requirements on the operation of abortion clinics, placing her at odds with recent Supreme Court rulings. And in two dissenting votes cast in 2018 and 2019, she endorsed an Indiana law that required fetal remains to be buried or cremated after an abortion.
If you’re looking for a historical parallel to measure the potential impact that a Barrett for Ginsburg swap could have, don’t look to Gorsuch, who succeeded Antonin Scalia, or Kavanaugh, who replaced Anthony Kennedy. Look instead to Clarence Thomas, who filled the vacancy left by the retirement of the liberal legend Thurgood Marshall in 1991.
Like Thomas, Barrett is a staunch and inflexible proponent of “originalism,” the jurisprudential philosophy popularized by Scalia, for whom Barrett clerked from 1998 to 1999 after graduating from Notre Dame Law School, where she ranked first in her class.
In its current iteration, originalism asserts that core legal terms and concepts like “freedom of speech,” “due process” and “equal protection” should be interpreted by judges today according to the “original public meaning” they had when they were first inserted in the Constitution or added by subsequent amendments.
Also like Thomas, Barrett has questioned the importance of adhering to past Supreme Court precedent decisions, writing in a 2013 article for the University of Texas Law Review: “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.” She voiced a similar position in a 2016 article she coauthored for the University of Pennsylvania’s Journal of Constitutional Law, acknowledging that adherence to precedent presents “a notoriously difficult problem for originalists.”
Even more so than Thomas, Barrett is a religious zealot. She and her husband Jesse, a former federal prosecutor, are reportedly members of People of Praise, a small, tightly knit, patriarchal charismatic Christian sect based in South Bend, Indiana, that professes admiration for “the first Christians who were led by the Holy Spirit to form a community.”
In a 2006 law school commencement speech at Notre Dame, Barrett urged graduates to become a “different kind of lawyer,” who sees that a “legal career is but a means to an end, and… that end is building the kingdom of God… [I]f you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.”
According to the Washington Post, Barrett “was a paid speaker five times, starting in 2011, at the Blackstone Legal Fellowship, a summer program established to inspire a ‘distinctly Christian worldview in every area of law’… to show students ‘how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America.’”
In 2015, Barrett signed a letter “from Catholic Women” to the Synod of Bishops, an advisory body to the Pope, that committed the signatories to act “in service to the Church’s evangelizing mission.”
Trump initially added Barrett to his list of possible Supreme Court nominees in November 2017. She was subsequently passed over, but, according to Axios, the president has been ghoulishly “saving” her to replace Ginsburg. Given Barrett’s extreme views, it’s easy to understand why her moment has arrived.
2. Barrett’s Nomination Is the Culmination of a Decades-Long Republican Push to Remake the Judiciary
Beginning in the early 1970s in reaction to the liberal—and historically atypical—work of the Supreme Court under the leadership of Chief Justice Earl Warren, the right has lobbied to place conservative ideologues on the federal bench.
Within the counterrevolution, no group has been more influential than the Federalist Society. From its founding in 1982 by three law students at Yale and the University of Chicago, the society has grown to include more than 200 chapters at law schools across the United States. From its base in Washington, D.C., today, the society also operates a “lawyers division” with more than 70,000 attorneys enrolled in chapters and “practice groups” in 90 cities.
Barrett is a former Federalist Society member. The other Republican-appointed justices on the court (Kavanaugh, Gorsuch, Thomas, Alito and Chief Justice Roberts) are also either current or former members.
Once confirmed, Barrett will be Trump’s third Supreme Court appointment. In the past 50 years, only Richard Nixon, who added four justices, has exceeded that total.
Trump has also been highly successful in placing Federalist Society members on the lower courts. Thus far, the Republican-controlled Senate has confirmed 53 Trump judges to the federal appellate courts, and 161 to the federal district trial courts.
3. Trump Is Banking on Barrett to Support Him in the Event of a Disputed Election
Trump is a man of dubious intellectual rigor. He may or may not fully comprehend—or personally care about—the long-term impact his judicial nominees will have on American law and society.
One thing he does understand, however, is self-interest. As I have argued before, Trump desperately wants to be returned to power after the November election, not only to gratify his bloated ego, but, quite literally, to avoid possible prosecution for an array of federal offenses committed before and after he became president. He knows full well that under Department of Justice policy, sitting presidents cannot be indicted and prosecuted for federal crimes. Remaining in the Oval Office while the statute of limitations on his misdeeds expires is his stay-out-of-jail ticket.
Trump has been working feverishly to undermine public confidence in the election because he is trailing Joe Biden in most polls. Unable to restrain himself, he disclosed on September 23 that he expected the election to “end up in the Supreme Court” in a replay of Bush v. Gore, the infamous judicial coup d’état that handed the 2000 presidential election to George W. Bush. A ninth justice, Trump insists, will be needed to break any 4-4 ties in order to determine the winner of the election should disputes over state voting results reach the Supreme Court.
Enter Barrett, Trump’s choice to deliver him a second term by judicial fiat.
4. The Democrats Must Support Structural Reforms to Take Back the Courts
The time has long since expired for the Democrats to meet the Republican judicial counterrevolution with equal resolve. It no longer suffices for Nancy Pelosi and Chuck Schumer and their ilk to appeal to the nonexistent decency of Republicans to adhere to constitutional norms and practices. Trump and the Republicans are interested only in retaining and wielding power.
Structural reforms are essential to respond to Republican tyranny. These include, at a minimum, ending the filibuster rule in the Senate; expanding the number of Supreme Court justices as well as the number of lower-court federal judges; and promoting statehood for Washington, D.C., and Puerto Rico.
All of these changes can be implemented legislatively if the Democrats regain a Senate majority and repeal the filibuster. None requires a constitutional amendment.
As the veteran legal analyst Jeffrey Toobin explained in a recent New Yorker column:
“The number of Justices is not fixed in the Constitution but, rather, established by statute… [T]he Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play.”
5. The Slide to Minority Rule Continues
The United States has entered an unmistakable era of minority rule. Because of the Electoral College, we have a president who lost the 2016 popular vote by nearly 2.9 million ballots. Because of the constitutional design of the Senate, which allocates two senators to each state regardless of population, we have a Republican Senate majority, even though Democratic candidates for the Senate in 2018 received more than 58 percent of the aggregate popular vote for the upper chamber.
The confirmation of Amy Coney Barrett to the Supreme Court will be yet another inflection point in the slide to minority rule. In a real democracy, it would be unthinkable for an outlier like Barrett to receive a lifetime appointment to the most powerful judicial body in the land.
Yet here we are. And here we will remain unless and until enough ordinary Americans, not just the operatives who run the Democratic Party, rise up and say that they have had enough.
