What Amy Coney Barrett Would Mean for the Supreme Court

Amy Coney Barrett claims to be a Constitutional Originalist, which she explained as meaning she believes the Constitution should be legally interpreted in the way that the writers of the Constitution originally intended. 

For the sake of time, let’s acknowledge but not explore the fact that language and its usage changes over time, and Barrett is not a linguist or historian who focuses on late 18th century legal or political documents or language evolution. Let’s also not get into the fact that the writers of the Constitution designed it for the country they were building, not the country they could never imagine which exists now, over 250 years later. And, of course, we don’t have time to get into how many of these contributors owned slaves, even their own Black children. 

Let’s also not dwell on the well-documented hypocrisy of Republican lawmakers pushing Barrett’s nomination hearing through mere weeks before the election, despite refusing one for Merrick Garland over 200 days before the 2016 election. Or the dangers of holding these hearings when multiple committee members have recently tested positive for COVID-19 and there is little ventilation and no COVID tests on the premises.

Now then.

Barrett’s Originalist stance means that anyone who isn’t a white male who owns land should not be allowed to vote. Indeed, most of the Bill of Rights don’t apply to anyone outside of this group. It also means that Barrett believes that she herself, as a woman, should not have the right to vote. One would assume that, believing she shouldn’t have that right, she does not exercise it. Also, in 1789 women could not be judges. Therefore Barrett is living in violation of her Originalist beliefs by serving as a federal judge now. She certainly would be in violation of these by becoming a Supreme Court justice. And yet she has not refused the nomination.

It’s baffling that Barrett wants to uphold the strictest possible interpretation of the Constitution despite all the ways doing so would destroy her career.

Although, her behavior during the nomination hearing over the past three days does suggest to me that she must not want the position particularly badly. She certainly doesn’t seem to be taking it seriously. 

Let’s remember, Barrett has been nominated by the president, but it is up the Congress to decide if she is fit to serve in that position. It is the job of the Congressional Judiciary Committee to learn how she would perform in that role and if she is qualified to take it. It’s a job interview.

So why is Barrett repeatedly refusing to answer the committee members’ questions? And why does she say it would “not be appropriate” to speculate on the hypothetical legal situations they propose? Every first year law student must speculate in exactly this manner to demonstrate their knowledge and proficiency in applying the law to real-life situations. By refusing to speculate, Barrett is refusing to demonstrate proficiency. Law students cannot practice law or be invited to return for a second year of law school without doing so. She must be aware of this universal requirement of law students, as she herself has been a law professor at Notre Dame, which didn’t accept female students until 1972.

Barrett has been nominated to help interpret laws in the highest court in the country. She’s supposed to be doing so now as a federal judge, a position she was appointed to a scant 3 years ago, and not without complaints of misconduct from her colleagues. These hypotheticals are entirely reasonable and it’s wild that she’s just…refusing to answer. Repeatedly. If I refused to answer questions during a job interview, I wouldn’t expect to get that job. So I wonder why Barrett has bothered to show up at all. 

Someone said to me recently that they don’t actually care if Justice Kavanaugh sexually assaulted Dr. Ford, so long as he votes on the Supreme Court in the conservative manner they want, primarily about abortion. Kavanaugh’s doing so, in their mind, will justify their voting for Trump in 2016 because of abortion, though they were deeply upset to vote that way at the time.

I have neither the time nor the energy to get into why breaking a law by assaulting another person should disqualify someone for the upholding of and interpretation of this country’s laws. Nor do I have space in this blog to discuss why doubling down on a damaging decision just to make yourself feel better is a terrible stance.

But let’s say that’s your stance too—if not about Kavanaugh then about Barrett. So long as she votes in the way you desire, against abortion for example, you don’t care if she refuses to answer questions during the hearing or claims beliefs that she clearly doesn’t live by.

What would a repeal of Roe V. Wade actually do?

As Ruth Bader Ginsberg wrote, wealthy women will always have a choice regarding abortion. They can pay for the plane tickets required to get them to a state of country where abortion is legal. Poor women, marginalized women will not have that choice. And that isn’t fair.

But let’s say you don’t care that it isn’t fair. You feel completely confident that you would never, under any circumstances seek an abortion for yourself or your spouse. However, you cannot guarantee that no one you love will not suffer a miscarriage. 

One in four pregnancies end in miscarriage. That’s the reality. 

Imagine yourself, or your spouse or daughter or best friend, has just suffered a miscarriage. Perhaps this has really happened to you or a loved one before.

You have just endured a miscarriage. Perhaps you have had to go to the hospital for treatment because of it. But if both you and your family don’t perform grief enough, you could be accused of actually having had an abortion. And as that would be illegal with Roe V. Wade repealed, you could be arrested for it. Even if you aren’t convicted, you would be stripped from your family at a physically and emotionally devastating time and locked behind bars. Your family would be forced to scrape together enough cash for you to post bail. You would probably lose your job if your family couldn’t post bail within a day or two. And whether you are forced to stay in jail or not, it isn’t as though you will receive great physical or any mental health care during that time, the medical effects of which could last years.

If you think, “Oh that wouldn’t happen. No one would do that,” it’s happened already. 

It’s the ongoing reality for women in El Salvador

Brian Kemp’s 2019 “heartbeat bill” here in Georgia could put a woman in jail for up to 30 years for having a miscarriage.

And you know about Marshae Jones, don’t you? She was shot in the stomach, lost her unborn baby, and was charged with manslaughter. Her bond was $50,000. Most of us don’t have $50,000 laying around.

Marshae Jones didn’t shoot herself in the stomach, but she was charged as if she did. And if manslaughter is the charge with Roe v. Wade in place, what if it’s repealed?

What if a woman who doesn’t know she’s pregnant has a glass of wine, then suffers a miscarriage? Even if someone could find a doctor who’d testify that that glass of wine resulted in the miscarriage, should that accident result in prosecution? What if a woman doesn’t go to the doctor as soon as she learns she might be pregnant, and later has a miscarriage? She could be charged with reckless endangerment or manslaughter for not seeking prenatal care as soon as someone on a bench or behind a badge thinks she should. 

No one of childbearing years would be safe in a repeal of Roe V. Wade. But that’s what’s at stake with Amy Coney Barrett’s nomination. She may refuse to speculate on hypotheticals, but it is entirely reasonable, even necessary for you and I to do so.

There is another possibility for why Barrett may be refusing to answer questions or go one record regarding how she would rule in certain instances. She doesn’t think she has to. She may have been assured that so long as she doesn’t go on record against Roe V. Wade or the Affordable Care Act (which yes, people still want repealed even during a pandemic), she will still be confirmed. If this is the case, these hearings are shams, a going through of the motions before the GOP pushes through whoever the president has nominated. If that’s the case, the game is rigged. That’s court packing. That’s a challenge to the prestige and power of the Supreme Court and ultimately a threat to our democracy because of the ways in which SCOTUS is designed to check and balance the power of the other two branches of government.

Maybe the game is rigged. Maybe she’ll be confirmed no matter what. But we can’t let her nomination move forward in silence. Hers or ours.