Posted on 10/05/2020 12:36:09 PM PDT by Kaslin
A close look at Amy Coney Barrett's legal writings indicates deep respect for the precedent set by landmark Supreme Court cases.
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 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.
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.’”
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.
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.”
Or it might.
Even if it does, our fight isn’t over.
Abortion doesn’t magically become illegal if RvW is overturned. It becomes a state issue and I can guarantee the ghouls in NY and CA will make sure they can continue murdering their children. Other states will move to outlaw the practice, but many won’t.
I think we will get a decision where it will be left up to the States to allow it or ban it.
Should be overturned and then let each state decide if they want to allow abortions.
I agree.
The USSC aborted States Rights in Roe vs Wade.
Absolutely
it won’t.
Dredd Scott was precedence at one time. Bad rulings REQUIRE the SC to over turn them.
Agreed. Even Roe is overturned, the abortion battle just goes back to the states. But even if she isn't the vote to get Roe overturned, she's a step in the right direction.
If the Supreme Court rules to end than it will go to where it belonged to begin with, a states rights issue not some make believe Constitutional perversion of the right to privacy.
Gorsuch will join Roberts in upholding it if it comes up for a challenge any time soon.
You heard it here first.
Roe v Wade will eventually be overturned and thrown back to the states. At that time a MAJOR curse will be lifted off America.
More people in this world are realizing that KILLING BABIES IS WRONG. Just like Nazis killing Jews is wrong.
The liberal demonrats are on the wrong side of history - the same as the Nazis.
Roe v. Wade is poorly written law that should be re-written giving back states rights plus any part of it being Constitutional.
In other words, she’s a terrible choice, promoted by terrible people.
I don’t think most on our side understand the issue beyond the court. We will never have the magic wand. The left’s huffing and puffing over Supreme Court is idiotic. They only listen to their feelings. The real agenda is working hard to eventually have the abomination disappear by incremental and generational change from the conscious of those who otherwise will slaughter their baby with no qualms. Abortion to the left is one of their sacred powers. They will NEVER let that go.
Roe is flawed and subject to death by 1000 nibbles because the justices wrote new law they pulled out of their fannies. Today states are making their own abortion law and Roe is turning into a relic.
Total scare tactics by the DNC. She is not going to right laws from the bench. Roe v Wade will however eventually get challenged and if anything will revert back to the individual states to decide whether to regulate or ban abortions.
It is damning that the only thing liberals can rally behind is unlimited casual sex that they deny has consequences.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.