A Supreme Court confirmation process would be illegitimate regardless of the nominee and regardless of the president. But the nomination of Judge Barrett to the nation’s highest court raises additional concerns. In the past four years, President Trump has appointed more than 200 federal judges, many of whom lack a commitment to enforcing key Supreme Court precedent protecting civil rights and civil liberties and a disturbing number of whom have been deemed “unqualified” by the American Bar Association. The Supreme Court itself is at a precipice, and, as noted above and further explained below, Judge Barrett’s addition to the Court would threaten core civil rights protections in this country.
Judge Barrett’s scholarship reflects a strong commitment to a judicial philosophy known as originalism, and in particular suggests a kind of originalism that is far more extreme than even Justice Scalia’s, who was widely understood to be one of the most conservative justices on the Roberts Court. Judge Barrett has written that the entire Fourteenth Amendment is “possibility illegitimate,” that Brown v. Board of Education, which ended legal apartheid in the United States, may have been incorrectly decided, and that the entire administrative state may be untenable from an originalist perspective. She has signed a newspaper advertisement stating: “It’s time to put an end to the barbaric legacy of Roe v. Wade.” And she made a speech suggesting that Title IX of the Civil Rights Act does not protect transgender persons.
Although Judge Barrett has indicated that she would not overrule Brown and a few cases that she has identified as “superprecedent,” she has written that she “tend[s] to agree with those who say that it . . . is more legitimate for [a justice] to enforce her best understanding of the Constitution” rather than adhere to the doctrine of stare decisis if she believes a precedent is clearly incorrect. That approach would call into question key Supreme Court precedent guaranteeing equal rights under the law for people of color, for women, and for LGBTQ persons.
On five separate occasions, Judge Barrett was a paid speaker in connection with the Blackstone Legal Fellowship, which is run by the Alliance Defending Freedom (ADF).40 The ADF has been designated as a hate group by the Southern Poverty Law Center as a result of its support for the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad; defense of state-sanctioned sterilization of transgender people abroad; and its contentions that LGBTQ people are more likely to engage in pedophilia. At her confirmation hearing for the Seventh Circuit Court of Appeals, Judge Barrett acknowledged that she knew the Blackstone Fellowship was an ADF Program at the time of her paid speaking engagements. The curriculum for the Blackstone Fellowship Program included readings such as The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, and The ACLU vs. America: Exposing the Agenda to Redefine Moral Values, both co-authored by Alan Sears, President, CEO, and General Counsel for ADF. Notably, Mr. Sears was a guest at the September 26th White House ceremony announcing Judge Barrett’s nomination. Judge Barrett’s record suggests that she is aligned in her beliefs with those who oppose marriage equality and full rights for LGBTQ persons. Indeed, as discussed below, she has expressly indicated that she does not believe transgender persons are protected by a key civil rights law.
Lest there be any doubt about how quickly LGBTQ rights could be imperiled, at the start of the October 2020 term, Justices Clarence Thomas and Samuel Alito wrote an opinion voicing a scathing critique of the Court’s decision guaranteeing the equal right of gay people to civil marriage in Obergefell v. Hodges, based on the same judicial philosophy espoused by Judge Barrett. Her addition to the Court could potentially create a majority vote in favor of overruling Obergefell and reversing the clock on LGBTQ marital rights.
The right to choose and other reproductive rights are also in peril if Judge Barrett is confirmed to the Supreme Court. Notably, President Trump has stated he would only nominate justices who will overturn Roe v. Wade,46 and Judge Barrett has signed a newspaper advertisement stating: “It’s time to put an end to the barbaric legacy of Roe v. Wade.”
Entrenching a 6-3 conservative majority on the Supreme Court would undermine basic civil rights protections for generations of women on one of the most contentious legal issues of our time. This underscores the critical need for voters to determine the Congress and President they want to fill this vacancy on the Court that will likely decide the future of access to abortion and reproductive rights.
Judge Barrett’s extensive writings allow an assessment of her judicial philosophy beyond the relatively few years she has been an appellate judge. Her writings and speeches, and statements to which she has signed on or endorsed, reflect her support for positions that raise grave concerns about her fidelity to precedent and to the rule of law, including core civil rights protections.
At her nomination ceremony, Judge Barrett said that as a Supreme Court justice, she would employ the same judicial philosophy as did Justice Scalia, for whom she clerked. But, although Judge Barrett and Justice Scalia both subscribe to the judicial philosophy known as originalism, she appears inclined to apply a version of the doctrine that goes well beyond Justice Scalia’s philosophy and one that would be fundamentally inconsistent with the Fourteenth Amendment’s express commitment to equal rights under law.
In Judge Barrett’s words, “[o]riginalism maintains both that the constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” As critics of originalism have noted, the doctrine requires judges to “moonlight as amateur historians to discern what the public hundreds of years ago understood constitutional provisions to mean.” Worse still, originalism risks freezing in place the prejudices of those who ratified constitutional provisions centuries ago, at a time when most Black people were enslaved, and full citizenship was limited to white men. As Justice Brennan stated in a similar context, originalism risks turning the Constitution into a “stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past.” Indeed, when the Supreme Court finally recognized (in 2003) that the Constitution prohibits the criminalization of intimate conduct among consenting same-sex adults, Justice Kennedy forcefully refuted the idea that the meaning of the liberty and equality embodied in the Constitution should be limited to the narrow understanding of those who ratified the constitutional text:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.
Importantly, not all originalists are the same. Judge Barrett’s writings suggest that she would employ one of the most extreme forms of originalism and one even more extreme than that embraced by Justice Scalia.
The Supreme Court is already far more conservative than it has been at any point in modern history. The Court is bitterly divided on key issues, and we have already witnessed a substantial erosion in the Court’s commitment to civil rights.
Justice Scalia believed that one consults original understanding only if the text is ambiguous. Justice Scalia said that Brown v. Board of Education was correctly decided because the text of the Equal Protection Clause prohibits segregated schools even if the majority of people in 1868 were segregationists. This is a key limitation on originalism because the Constitution’s text reflects certain core commitments to equal justice under the law. By contrast, if the original understanding of a constitutional provision can override the text, an original understanding that may have been informed by racist, sexist, and other prejudiced understandings of what full citizenship means and who is entitled to it may become frozen into constitutional law.
Consistent with this concern, Judge Barrett has explicitly stated that “[a]dherence to originalism arguably requires . . . the reversal of Brown v. Board of Education”—along with “the dismantling of the administrative state” and “the invalidation of paper money.” To be clear, Judge Barrett has not expressed a definitive view about whether Brown was correctly decided, and she has identified it as one of a select few “superprecedents” that no judge would actually overrule. But the fact that Judge Barrett understands originalism to call all of these basic constitutional norms into question—and still adheres to the doctrine as the primary mode of constitutional interpretation—raises serious questions about her commitment to enforcing core civil rights protections. Treating Brown as potentially mistaken, even if untouchable, is far different from recognizing that it was correctly decided. And, in sharp contrast to Judge Barrett’s statement that Brown may be incorrect under her theory of constitutional interpretation, all of the current justices resoundingly agree on the correctness and importance of Brown, making her statements on Brown an extreme outlier on an already conservative Court.
The Fourteenth Amendment and Congress’ authority to enforce it is the foundation of almost all of our major civil rights statutes and our entire conception of equality under the law. However, Judge Barrett has stated that, from an originalist perspective, the Fourteenth Amendment is “possibly illegitimate.” Although she did not elaborate on this position, she cited an article suggesting that the Fourteenth Amendment was a “purely partisan measure,” and that, from an originalist perspective, was improperly adopted because it was drafted and enacted in a Reconstruction Congress in which the Southern states were denied representation. If the Fourteenth Amendment were deemed illegitimate, the Constitution’s core commitment to equal protection under law would disappear. Congress would lack the power to enforce civil rights laws such as the Voting Rights Act. And all Americans would be stripped of their rights under many other constitutional provisions—including the rights to free speech, to freely exercise their religion, and to bear arms—because all of those rights only apply to the States as a result of the Fourteenth Amendment. Again, Judge Barrett has made clear she does not expect any judge to actually invalidate the Fourteenth Amendment, but this pragmatic recognition is not grounded in Judge Barrett’s belief in the clear legitimacy of the Fourteenth Amendment.
By referring to the Fourteenth Amendment as “possibly illegitimate” under her own judicial philosophy, Judge Barrett has called into question how she would interpret the countless civil rights cases that rely on the Fourteenth Amendment to extend key protections against discrimination to historically marginalized groups. Her stated ambivalence about the validity of the Fourteenth Amendment under her understanding of originalism raises deep concerns about her fitness to serve on the nation’s highest court. Indeed, the very words on the frontage of the Supreme Court— “Equal Justice Under Law”—are called into question by speculation about the legitimacy of the Fourteenth Amendment.
The Supreme Court’s decision last term in Bostock v. Clayton County, highlights the importance of giving full effect to laws that promise equal rights under law, even as they are applied in contexts that their drafters may not have contemplated. It also highlights deep concerns with Judge Barrett’s embrace of extreme originalism and its likely impact on key civil rights protections.
In Bostock, the issue before the Court “was whether an employer can fire someone simply for being [gay] or transgender.” The Court correctly answered that question “no.” In an opinion written by Justice Gorsuch, joined by Justice Ginsburg, the majority explained that the plain text of Title VII prohibits such discrimination. When an employer discriminates against, for example, a male employee because he is attracted to a man, the employer is discriminating “because . . . of [the employee’s] sex,” in violation of Title VII, as the employer would not have penalized a female employee attracted to a man.61 Relying on a prior opinion by Justice Scalia, the Court stressed that it did not matter whether those who drafted Title VII recognized that the law would prohibit employment discrimination against LGBTQ persons, because it is “the provisions of [Congress’s] legislative commands ‘rather than the principal concerns of our legislators by which we are governed.’” Yet, three Justices dissented from this ruling, arguing that the Court should interpret Title VII to permit employees to be fired simply because they are gay or transgender. Judge Barrett has advocated a similar position, contending in a 2016 speech that Title IX of the Civil Rights Act, which also prohibits discrimination on the basis of sex, does not protect transgender persons from discrimination because, in her view, “no one . . . would have dreamed of that result” at the time the law was enacted.
Notably, Justice Scalia also recognized that changes in societal understandings (e.g., about women’s rights and the scope of “property” interests) inform the proper understanding of constitutional text, even for an originalist. This is another important limitation on originalism, preventing the doctrine from being co-extensive with the prejudices and biases of prior generations. Judge Barrett has not endorsed these key principles that allow originalism to co-exist with our society’s fundamental commitment to equal citizenship under law. To the contrary, Judge Barrett has acknowledged that originalists adhere to the precedent of history and has openly grappled with the tension between an originalist’s approach to cases that are inconsistent with the original public meaning.
Finally, while Justice Scalia described himself as a pragmatic “faint-hearted originalist” who sometimes adhered to precedent that deviated from the original public meaning of constitutional text, Judge Barrett has described constitutional stare decisis as especially weak, and has suggested that stare decisis may in some circumstances be unconstitutional. She has advocated for a more “flexible” understanding of stare decisis, outside of a relatively small number of superprecedents—“decisions that no serious person would propose to undo even if they are wrong”—including, among others, Mapp v. Ohio, Brown v. Board of Education and the Civil Rights Cases. Judge Barrett has stated that Roe v. Wade is not among the cases considered “superprecedent;” therefore, we cannot expect that Judge Barrett would follow stare decisis in determining whether the holding in Roe remains good law.
For other categories of constitutional precedent, Judge Barrett has also affirmed her belief that judges should generally decide cases consistent with their interpretation of the Constitution, instead of adhering to prior precedent as a result of reliance and stability interests under the doctrine of stare decisis. And she has posited that to the extent there is a conflict between the original public meaning and precedent, the original public meaning is authoritative.