Amid a White House COVID-19 outbreak that also encompassed members of the Senate Judiciary Committee, Senate Majority Leader Mitch McConnell (R-Ky.) rushed to reassure supporters that the Senate was still on track to confirm President Donald Trump’s Supreme Court pick, Amy Coney Barrett, by Election Day.
If Barrett’s nomination goes forward, Democrats cannot let a chaotic news cycle detract from the damage the judge could do to women’s rights.
To highlight the absurdity of Barrett’s judicial philosophy, Senate Democrats should ask Barrett one basic question: Can a female judge truly be an originalist?
Barrett subscribes to a judicial philosophy known as originalism — in which judges pledge to interpret the Constitution as understood by the framers and the public at the time it was written. Barrett also describes herself as a textualist, meaning that she interprets the law strictly according to its text without considering the larger goals of the legislators who wrote it.
Originalists and textualists often make the case that their judicial philosophy allows them to provide an unbiased assessment of any case before the court. In his own confirmation hearing, Chief Justice John Roberts popularized this perception by famously stating that “My job is to call balls and strikes and not to pitch or bat.”
In her remarks at her nomination ceremony, Barrett echoed Roberts’ sentiments claiming that “A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
When taken at face value, Roberts’ and Barrett’s claims seem imminently reasonable — most Americans would agree that judges should apply the law, not write it. However, their bland pronouncements obscure a much more reactionary judicial philosophy.
The idea of a female originalist is oxymoronic.
The framers of the Constitution clearly did not believe that women should be accorded the full rights of citizenship, much less hold a Supreme Court seat. While the 19th Amendment finally gave women the right to vote in 1920, it is doubtful that the all-male Congress that wrote and passed the amendment would have been comfortable with a female Supreme Court justice. It took another 61 years before Sandra Day O’Connor was appointed to the bench.
While it may seem trite to hold Barrett to the same standard of rights held by women in 1787 or 1920, this is the same logic that originalists employ. Barrett clerked for the late Justice Antonin Scalia and credited him with a major influence on her judicial philosophy.
Justice Scalia famously argued that the 14th Amendment’s promise of equal protection under the law does not prohibit discrimination based on sex because no one voting on the amendment in 1868 really believed that women should be treated equally.
Instead, Scalia argued: “What the Constitution meant when it was adopted is what it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times.”
Some originalists — including more than 20 of Trump’s judicial nominees — have refused to affirm the Supreme Court’s decision in Brown v. Board of Education. The logic goes: It is clear that the drafters of the 14th Amendment in the 1860s did not intend for the Equal Protection Clause to require the desegregation of public facilities like schools. So, the court’s unanimous decision in Brown represents judicial overreach.
When judges like Barrett promise to “apply the law as written,” they give a false impression that they will respect the democratic majority’s will that drafted those laws. However, as Barrett herself explained in a law review article, a strict originalist interpretation of the Constitution would require the courts to strike down several laws drafted by a popularly elected Congress. She intimates that one of those laws would be the Affordable Care Act.
As legal scholars have pointed out, a strict originalist reading of the Constitution would uproot much of modern political and economic life since it would even call into question the constitutionality of paper money and social security.
The very fact that Barrett accepted the president’s nomination means that there are limits to her originalism. She clearly doesn’t believe that being a woman disqualifies her from sitting on the Supreme Court.
Democrats on the Senate Judiciary Committee should press Barrett on how she would decide when an original reading of the Constitution would be appropriate and when it would not. It seems odd to claim that upending Social Security for the sake of originalism would be too chaotic but that a faithful reading of the Constitution requires judges to strip 20 million people of health care in the middle of a pandemic.
In deciding where to draw the limit on originalism, Barrett is not simply “calling balls and strikes.” She is exercising her own judgment in interpreting the law.
While originalism in its current iteration gained traction in the early 1980s post-Roe v. Wade, the idea that the Constitution should be applied exactly as the Founders intended has long been used to deprive women of rights. For example, suffragettes infamously argued that the Constitution should be reinterpreted to extend the promise of equality to women. Their opponents argued that the framers did not intend to extend the vote to women.
Asking Barrett to reconcile how a woman can be both an originalist and a Supreme Court justice would clearly expose her judicial philosophy’s flaws. Barrett needs to explain why an originalist reading should be used to justify a restriction on women’s equal protection under the law and the appointment of a female Supreme Court justice.
Barrett’s message to other women seems to be “Originalism for thee but not for me.”
Katie Scofield has a Ph.D. in Political Science from Indiana University, with a focus on comparative constitutional law. She was awarded a Fulbright grant to study the Ecuadorian constitution and its treatment of human rights and teaches government at Blinn College in Texas.