How Amy Coney Barrett Would Reshape the Court — And the Country
Lagoa met my second criterion, too. Although she signed on to a controversial opinion upholding the Florida Legislature’s insistence that would-be voters with felony records pay fines as a prerequisite to voting, her brief record on the federal bench left her views on hot-button issues pretty opaque. In that posture, Lagoa would not have served as a severe splitter, a divider or a source of deep existential agony for millions of Americans.
Barrett, like Justice Brett Kavanaugh before her, may well be a delightful person. And while her professed devotion to a theory of interpretation called “originalism” puts her solidly in the camp of conservative jurists, Lagoa is of that ilk, too. The difference is that Barrett’s views on contentious issues like abortion, Obamacare, gun rights, sexual assault and immigration are well-documented and lean decidedly against majorities of the voting public. Her nomination is thus a political act of splitting. It is yet one more Trumpian assault on “We the People” of a democratic republic composed of many different views, beliefs and needs. And sadly, in the wake of Justice Ginsburg’s legacy of moderation and grace, pushing Barrett through a Republican-only Senate vote just days before an election that will determine the fate of American democracy is more fuel for the fires of hatred, extreme fear and violence. It does not bode well. She is the wrong choice for America right now.
‘Once again, the court will be a conservative bulwark against democratic forces’
Howard Gillman is chancellor of the University of California, Irvine, and the co-author of The Religion Clauses: The Case for Separating Church and State.
For most of the nation’s history, the Supreme Court was a protector of the rights and interests of America’s elites against larger democratic forces. Its focus was the protection of property rights, corporate rights, slave owner rights and limits on the ability of legislatures to regulate. It struck down income taxes, child labor laws, minimum wage laws and civil rights legislation. It did very little to protect the rights and interests of those struggling for greater equality and opportunity. It prevented democratic majorities from advancing progressive agendas. It tried mightily to prevent the New Deal. In short, it was a conservative bulwark.
This legacy started to change in the 1950s and 1960s as a result of a bipartisan agreement among presidents and senators that courts should be more supportive of civil rights, civil liberties, the circumstances of “discrete and insular minorities,” and the ability of government to address contemporary social challenges. Many of us who grew up during this period took for granted that the Supreme Court would be a force for protecting the vulnerable rather than the powerful. But no longer.
With the appointment of Amy Coney Barrett — an undoubtedly qualified jurist with rock-solid conservative credentials — the court will revert to the role it performed for most of our history, with an ironclad majority of conservative justices who have dedicated their careers to taking back the courts. As a result, Congress’ authority to address national challenges, including access to health care and the promotion of civil rights, will be diminished, regulatory agencies will work less in the interests of average people, voting rights will receive less protection, state and local governments will be allowed to align themselves more with majority religious sects, the interests of powerful religious groups will be privileged over hard-won protections for the LGBTQ-plus community, and women’s reproductive rights will be at the mercy of state legislatures. Joining her in the new majority are other justices who were appointed by Republican presidents who did not win a majority of the popular vote, at a time when Democratic president candidates have won a majority or plurality of the popular vote in seven of the past eight elections. In short, once again, the court will be a conservative bulwark against democratic forces.
‘She will likely move the Supreme Court in a principled direction’
Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Rights at the Cato Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.
Judge Amy Coney Barrett has displayed a seriousness of purpose and is dedicated to finding and applying the Constitution’s original public meaning. Her thoughtful opinions and academic writings show a willingness to hold government officials’ feet to the constitutional fire, although one law review article gives me pause about potential over-deference to state authority regarding the sorts of regulations and restrictions that have come to the fore during the Covid-19 pandemic. I have no doubt she is qualified to be a justice and that she will bring esteem to the Supreme Court.
As Justice Barrett, she will likely move the Supreme Court in a principled direction, as there would no longer be a need to account for Chief Justice John Roberts’ strategery to achieve a majority. I look forward to the court’s finally starting to flesh out the scope of the right to keep and bear arms, to putting an end to treating people differently based on the color of their skin and to reining in the federal government’s overreach in a host of areas. While Barrett isn’t known for her administrative law opinions, I would hope also that she will join fellow Trump nominees Neil Gorsuch and Brett Kavanaugh in reining in the bureaucracy, forcing Congress to make the tough decisions about conflicting policy views. That’s ultimately the only way we’ll start dissipating the toxic cloud surrounding judicial nominations.
Kavanaugh is now the swing justice when it comes to abortion
Mary Ziegler is a professor at Florida State University College of Law and author, most recently of Abortion and the Law in America: Roe v. Wade to the Present.
Amy Coney Barrett seems likely to shape the court’s jurisprudence for decades to come — not least when it comes to abortion. The court already had a conservative majority, but Chief Justice John Roberts’ concern for the court’s appearance seemingly made him reluctant to dismantle abortion rights too quickly. Barrett’s ascent likely gives the deciding vote on abortion to Justice Brett Kavanaugh, a judge whose name still almost immediately brings to mind the #MeToo movement. Kavanaugh, like Roberts, is not likely to give conservatives instant gratification when it comes to abortion. But his professed respect for precedent has not so far stopped him from rolling back abortion rights. He seemed to think that abortion foes could distinguish identical Louisiana and Texas laws, all while claiming to respect precedent. Kavanaugh understands that the court’s undue-burden test provides a perfect vehicle for undermining abortion rights. There is no reason to expect that will change if Barrett becomes the high court’s sixth conservative member.
Barrett may also help to form part of a more clearly — and unapologetically — conservative wing. Justice Clarence Thomas is fond of fiery dissents and concurrences, but he often finds no one to join him. Barrett firms up the court’s conservative majority — creating a sort of insurance policy for the right if the chief justice or one of his colleagues breaks away from the pack. And Barrett’s confirmation might make more of the justices comfortable joining Thomas in demanding radical changes to many areas of the law.
A foolproof conservative majority, with Barrett at its heart, might come at a real cost to the legitimacy of the Supreme Court. If, as widely expected, Joe Biden wins the popular vote, Democrats will have carried a public majority in seven of the past eight presidential elections. In the same period, the court has become ever more conservative, and likely to contravene policies that voters prefer. Roberts has long had a fear of backlash — the kind of political crisis that can plague the court when it departs too far from public opinion. Senate Majority Leader Mitch McConnell and President Donald Trump might not care about what becomes of the court as an institution, but members of the court’s new conservative supermajority would be wise to recognize that the chief justice has reason to be concerned about the court’s reputation. When it comes to abortion, or to the fate of Obamacare, everyone is watching. The fate of the judicial branch’s legitimacy might just hang in the balance.
‘We may be looking at the last new Roberts Court’
Josh Blackman is a professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
For the past 15 years, the Supreme Court has been known as the Roberts Court. But in truth, each new justice forms a new court. Chief Justice Roberts has presided over numerous personnel changes. Justices Sandra Day O’Connor, David Souter, John Paul Stevens, Antonin Scalia, Anthony Kennedy and Ruth Bader Ginsburg left, and Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh have arrived. By Election Day, the chief justice will likely welcome Justice Amy Coney Barrett as the ninth member of the court. And a new Roberts Court will begin.
The confirmation process for Justice Barrett will be excruciatingly painful. Yet, it will still be familiar — a process that we know, with a predictable outcome. The future of the court, on the other hand, is far more uncertain. In 2021, or perhaps 2025, Democrats will likely push to expand the court. Roberts may soon have to greet two or more new members, even though there were no departures. The chief may go through all the same formalities, welcoming No. 10 and 11 the same way he welcomed No. 9 — but the Supreme Court will never be the same. We may be looking at the last new Roberts Court.
‘She has not been and will not be subject to a level of vetting appropriate to a lifetime appointment’
Jamal Greene is a professor at Columbia Law School and the author of the forthcoming book How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart.
Judge Barrett seems to be a smart lawyer and a decent person. But the fact is we can’t intelligently predict what her selection will mean for the court or for the country because she has not been and will not be subject to a level of vetting appropriate to a lifetime appointment to the Supreme Court. What we do know is that the woman whose seat she is seeking to fill lived a life committed not just to equality — what she often called “equal citizenship stature” for all — but to values of thoughtfulness and due process. To allow just two weeks to prepare for a hearing and vote, on the eve of a presidential election, dishonors her legacy.
A role model for women
Helen Alvaré is a professor at George Mason University’s Antonin Scalia Law School and the co-author of the forthcoming book Christianity and the Laws of Conscience.
Amy Coney Barrett will inspire several generations of female lawyers and academics for many of the same reasons Ruth Bader Ginsburg did. Her intellectual excellence and her dedication throughout decades to the unrelenting and high-stakes work of lawyering, writing, teaching and judging make her a role model for lawyers generally.
Realistically, though, female attorneys are still prone to asking themselves again and again whether they can “do justice” to both their work and their personal responsibilities. For these women, Judge Barrett’s example, like Justice Ginsburg’s, will be a touchstone for many years.
‘To talk about what Amy Coney Barrett would mean for this issue or that issue is to miss the true historical significance of this appointment’
Richard Pildes is a professor at the New York University School of Law.
The authority and legitimacy of public institutions takes decades to build up — but can unravel far more quickly. We have been in the midst of a blood feud over the Supreme Court for some years now, which is increasingly likely to cause great damage to an institution the country needs. Like in all blood feuds, each side has its own story of how it all began, which goes back nearly 40 years: You blocked Bork. You denied Garland a hearing. We had to get rid of the filibuster for lower court judges. We had to get rid of it for the Supreme Court. Overwhelmed by the politics of the moment when in power, neither side can stop, making it inevitable that when the worm turns, the other side will up the ante all the more.
To talk about what Amy Coney Barrett would mean for this issue or that issue is to miss the true historical significance of this appointment and what it will mean for the court. If Democrats capture the Senate and White House this fall, the pressures to pack the court will become more formidable than at any time since Franklin D. Roosevelt’s disastrous 1937 attempt (the political backlash against that effort brought about the end of the New Deal). That effort might press to add four new justices, to create a 13-member court with seven Democratic appointees. As soon as the Republicans regain power, they will then take their turn at refashioning the court to serve their aims.
A bespoke court, custom designed and redesigned to serve the interests of the party in power, would lose much of the institutional capital it has built up over two centuries. Perhaps Judge Barrett’s nomination will eventually lead the warring tribes to forge a treaty that reduces the stakes in these appointments (through mechanisms scholars have discussed for years). Or perhaps the stakes in Supreme Court appointments will diminish because one political party gains complete control of government for decades, thus making the court less relevant, as Republicans did after the Civil War and Democrats did during the New Deal. Of course, each side’s firm belief that it is (always) on the cusp of doing that is part of what propels the feud forward.
Barrett deserves a fair hearing — from both sides
Adam J. White is a resident scholar at the American Enterprise Institute.
As a judge and a scholar, Amy Coney Barrett has dedicated her career to thoughtful study of interpreting laws and weighing precedents. She would be an ideal Supreme Court justice in any era, but especially in this era, when proper understandings of legal interpretation and stare decisis are of such central importance to the court’s work. There is every reason to expect that Judge Barrett will be an exemplary justice, and the Senate Judiciary Committee’s hearing should be a good moment to introduce her to the broader American public and to consider the proper role of the court and the rule of law in our constitutional government.