President Trump’s nomination of Amy Coney Barrett to the Supreme Court is a welcome choice. Senate confirmation cannot come soon enough. Judge Barrett clerked for Supreme Court Justice Antonin Scalia for two years and considers the great conservative jurist her mentor. That is heartening.
But it is not the herald of coming victories that the pro-life movement wants it to be. Any euphoria among pro-lifers is premature at best. Celebrating Barrett’s nomination as the long-awaited death knell for Roe v. Wade fuels public fears that abortion will disappear easily and immediately. That is no help in the confirmation process. And it ignores her well-documented judicial philosophy.
Barrett’s Respect for Precedent
Barrett is on record saying that she is not sympathetic to overruling precedent. Her position defuses pro-abortion objections while sending an oblique caution to pro-lifers.
In 2016, in response to concerns about the way a conservative Supreme Court might change current abortion law, she remarked: “I don’t think abortion or the right to abortion would change.” The Supreme Court’s willingness to address the issue would likely be confined to regulatory matters, e.g., states’ restrictions on abortion, including the rules governing abortion facilities.
During a 2013 lecture at Notre Dame on the 40th anniversary of Roe v. Wade, Barrett said:
I think it is very unlikely that the court is going to overturn [the ruling]. . . The fundamental element, that the woman has a right to choose abortion, will probably stand.
Just this summer, the “Notre Dame Journal of Law, Ethics & Public Policy” published an article of compelling interest to court watchers. “The Last Testament of Justice Scalia: On Aquinas And Law” by Stephanus Henrianto, S.J. concentrates on the relation between Aquinas’ theological insights and Scalia’s jurisprudence. Most applicable here are those sections citing Barrett herself.
They spotlight why she is Scalia’s intellectual and spiritual heir. Doing so, they give pause to untimely rejoicing in the pro-life camp. Begin with Scalia’s statement in his final lecture that Catholic judges need not necessarily recuse themselves in cases of abortion:
They in no way participate in the killing of the baby. They merely hold, in accordance with the Supreme Court’s determination of what natural law requires, that the government cannot prevent that killing.
Startling as that is to conservative ears, it is consistent with Scalia’s long-held insistence — in the author’s summation — “that a judge bears no moral responsibility for the laws society has failed to enact. Moral obligation weighs heavily upon the voter and legislator who is supposed to pass the laws that restrain abortion.”
In other words, the judiciary has no sanction to relieve a free society of its obligation to choose, nor rescue it from its choices.
Scalia was a staunch opponent of abortion rights. But his opposition was based on legal reasons, not moral or religious ones. It follows that, if a state were to permit abortion on demand Scalia asserted:
I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, because the Constitution gives the federal government and, hence, me no power over the matter.
Clues From Barrett’s Previous Confirmation
In her public statements, Barrett often mirrors Scalia’s positions. Recall the 2017 confirmation hearings before Barrett’s confirmation as a circuit judge for the Seventh Circuit. Sen. Dianne Feinstein, D-Calif., questioned Barrett closely on her views about Catholic faith and abortion.
During the hearing, Feinstein asked Barrett whether she will follow Roe v. Wade as a “super precedent.” Stunningly, Barrett answered, “I would commit, if confirmed, to follow unflinchingly all Supreme Court precedent.” When Feinstein pressed further, Barrett explained:
Roe has been affirmed many times and survived many challenges … and it is more than forty years old, and it is clearly binding on all courts of appeals. So it’s 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.
As Democrats remained unpersuaded by Barrett’s answer, she asserted that “It is never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else other than the law.” Moreover, she stressed that “my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.”
Barrett’s position echoed Scalia’s position on how a Catholic judge should deal with an issue like abortion. Scalia repeatedly warned that a judge who happened to be a Catholic should not impose his or her faith convictions in a judicial matter. As he once said: “My religious faith can give me a personal view on the right or wrong of abortion; but it cannot make a text say yes where it in fact says no, or a tradition say ‘we permit’ where it in fact has said ‘we forbid.’”
The Sway of ‘Super Precedents’
To grasp the full significance of Barrett’s answer to Feinstein, it helps to know the meaning of super precedent. Constitutional lawyer Michael Gerhardt explains the designation is a term of art for a decision that has been repeatedly reaffirmed by the Supreme Court and become the foundation for subsequent lines of reasoning:
[A super precedent] seeps into public consciousness and becomes a fixture in legal framework Super precedents are the constitutional decisions whose correctness is no longer a viable issue for courts to decide; it is no longer a matter on which courts will expend their limited resources.
Barrett’s preference for restraint in judicial review of existing law derives from the fear that “judges will confuse the demands of the Constitution with their own conception of the public interest.” She is skeptical of the presumption that there is a judicial solution to every problem. Furthermore, she is sensitive to the lure of statutory purposes — politics — posing as verities:
A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference; judges who give into that temptation exceed the limits of their power by holding a statute unconstitutional when it is not.
Her 2017 essay for the University of Minnesota Law School criticized the reasoning of constitutional scholar Randy E. Barnett, an advocate of more expansive “judicial engagement.” Barrett gives him a fair hearing but rebuts him throughout. Her rebuttal repeats the virtues of federalism:
Once the Supreme Court weighs in on a constitutional question, the entire nation is bound, and the opportunity for regional differences is extinguished. Deferential judicial review of run-of-the-mill legislation is consistent with the reality that the harm inflicted by the Supreme Court’s erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute.
She continued: “The Supreme Court’s constitutional mistakes are extremely difficult to correct; one can hope only for a change of heart, a change of personnel, or a change by constitutional amendment.” A change of heart. Implicit in that phrase is a recognition that a democratic people — We the People — are the source of the conditions from which laws emerge. It is best described as the tragic view of the court in contrast to the utilitarian one held by judicial activists.
Keeping Policy Preferences Out of Rulings
Reflecting her mentor, Barrett told the audience at a 2016 speech at Jacksonville University’s Public Policy Institute: “We shouldn’t be putting people on the court that share our policy preferences. We should be putting people on the court who want to apply the Constitution.”
Early in her career, Barrett asserted her belief that whenever there is a conflict between a judge’s personal convictions and her obligation under the rule of law, the judge is obliged to recuse herself.
Of relevance to the pro-life movement is “Originalism and Stare Decisis,” Barrett’s defense of Scalia’s pragmatic position on stare decisis (the principle that obligates the courts to consider precedents set by previous decisions). It is a journey into the complications against upending settled law:
If a precedent is so deeply imbedded that its overruling would cause chaos, no Justice will want to subject the precedent to scrutiny. . . . The Constitution does not require the Court to identify, much less rectify, every constitutional mistake.
These remarks follow Scalia’s insistence: “Originalism, like any theory of interpretation, must accommodate the doctrine of stare decisis; it cannot remake the world anew.” Barrett assents to his belief that “if reversal would cause harm, a Justice would be foolhardy to go looking for trouble.”
Tellingly, the reference to Roe v. Wade is confined to the footnotes. Here is where she cites Scalia’s insistence on overruling Roe and, later, Planned Parenthood v. Casey. This, after previously stating that those cases Scalia voted to overturn were not in the “super precedent” category.
At stake is whether, by now, Roe has acquired immunity from reconsideration despite ongoing public controversy over it. Barrett’s response to Feinstein regarding the status of Roe suggests that an about-face on the 1973 decision is not in the cards.
If challenges to Roe v. Wade do arise, we should expect either a recusal or a decision on strict legal merits. We might not like that. But our constitutional republic — what is left of it — will not survive the drift toward legislation from the bench. As once understood, the Supreme Court is supreme only over other courts. It was never intended to be supreme over the legislative and executive branches of government.
As Scalia’s heir, Barrett knows that. Where this leads us, we do not yet know. We are left with Gerhardt’s conundrum: “Stare decisis is not an inexorable command in constitutional adjudication, except when it is.”