AMY CONEY BARRETT: BAD NEWS FOR CIVIL LIBERTIES

JESSICA MALOSH | OCTOBER 21, 2020 | OPINIONS

Quickly following the death of Supreme Court Associate Justice Ruth Bader Ginsberg on Sept. 18, President Donald Trump nominated Amy Coney Barrett, a circuit judge in the U.S. Court of Appeals for the Seventh Circuit, to fill the newly vacated position. This alone created controversy as historical precedent has never seen a president attempt to fill this position so close to a presidential election. What is even more concerning is Judge Barrett’s personal values and behavior in the Supreme Court Confirmation hearings have shown her to be unable to let go of her personal beliefs that would shape her rulings if she is confirmed.

During the Supreme Court Confirmation Hearing, Judge Barrett expertly dodged questions on her stances by either feigning ignorance or using the boilerplate excuse of inability to speak in abstracts or rule on hypotheticals.

There were many instances of her self-claimed lack of knowledge, but the one that stuck out the most was her response to Sen. Richard Blumenthal of Connecticut on Oct. 14 when he asked about her opinion on climate change. She claimed she did not know enough to make an informed statement. Sen. Blumenthal tried a different approach and asked whether she agreed with the President’s views on climate change, which have been notoriously anti-science. “I don’t know if I have seen the President’s expression of his views on climate change,” said Judge Barrett. As public as President Trump has made his views, it is hard to believe that Judge Barrett, who holds political office, is not aware of his position.

On the subject of racial injustices, brought up by Sen. Cory Booker of New Jersey, Judge Barrett took the same approach. Sen. Booker provided ample amounts of statistical evidence of the systemic racism that exists in the U.S. government especially in the judiciary branch, and asked whether Judge Barrett had done any research or read any scholarly writing on such an important and long standing subject. Her answer was, “What I have learned about it has been through conversation with people, but it is not something that I can say I have done research on.” Judge Barrett’s clear lack of interest in matters that disproportionately affect racial minorities shows her gross negligence as an unbiased judge.

Judge Barrett’s actions go further than her lack of interest when it comes to the issues that racial minorities face as she has a history of ruling against them by virtue of small technicalities. For instance, in the case Torry, et al. v. City of Chicago, et al., the plaintiff Marcus Torry sued three Chicago police officers alleging that the officers lacked reasonable suspicion for pulling him over and arresting him without probable cause. Judge Barrett sided with the defendant because of a technicality in the precedent Figgs v. Dawson and stated, “Thus, to win, the plaintiffs must show not only that the stop was unlawful, but also that the unlawfulness of the stop was clearly established at the time that it occurred. Because the plaintiffs cannot make the latter showing, we need not consider whether the stop violated the Fourth Amendment.” Even though Judge Barrett conceded that stop was unlawful, she resorted to a technicality allowing her to bypass the basis of the plaintiff’s argument, which demonstrates Sen. Booker’s concerns about the biases that exist in the judiciary branch are legitimate. 

Moving on, Judge Barrett’s responses and stances on different topics were sporadic during the hearings as she used the excuse that she could not grade precedent or speak in the abstract when asked questions about her opinions on past rulings or her legal stances.

Her refusal to speak on her opinions facing past and ongoing litigation would be understandable had she been consistent when responding to both Democrats and Republicans.  When Sen. Lindsey Graham, a Republican, asked if Judge Barrett would adhere to the doctrine of severability, which preserves the remainder of a provision even after one of its components are deemed unconstitutional, Judge Barrett stated she will try her best to uphold severability. Later, Sen. Diane Feinstein, a Democrat, brought up a past ruling of Judge Barrett’s mentor, Former Associate Justice Antonin Scalia, specifically his dissent in the ruling of National Federation of Independent Business v. Sebelius where he believed severability was impossible and the entirety of the Patient Protection and Affordable Care Act should be nullified. When asked about it, Judge Barrett refused to express agreement saying that she cannot grade precedent or speak in the abstract even though she had no issues responding to the hypotheticals posed by Sen. Graham. 

Her hypocrisy was even more apparent when Sen. Blumenthal tried to get her legal opinion on the precedents Obergefell v. Hodges, the ruling that determined that same-sex couples have the right to marry, and Griswold v. Connecticut, which ruled that married couples have the right to buy contraceptives without government restrictions. Unsurprisingly, Judge Barrett refused to answer saying, “I cannot suggest agreement or disagreement with precedence [of] the Supreme Court. All those precedents bind me now as a seventh circuit judge and were I to be confirmed I would be responsible for applying the law of stare decisis to all of them.” Ironically, when speaking to Sen. Graham, she expressed assent to the precedent Brown v. Board of Education. She attempted to explain this inconsistency by asserting that because she shared her opinion before the hearing, in one of her lectures, she could maintain her opinion during the hearing. These lectures were given after her induction to the Seventh Circuit Court of Appeals, which undermines her claim that she is bound by that position to refuse to grade precedent.   

What's more, Judge Barrett is an undisputed originalist and a textualist, meaning that she believes in a strict interpretation of U.S. founding documents without taking into account the intentions, political atmosphere, or time period in which the laws were written. However, it is worth noting that the Constitution and Bill of Rights were written before the issues of modern society were even present. There are no provisions that address racial injustices, women's rights or technological implications on privacy in either the Bill of Rights or the Constitution. At their core, Judge Barrett’s beliefs are inadequate for modern society.

Judge Barrett’s lack of transparency during the hearings, her history of bias, and her outdated views has made her a regrettable choice and unfit to serve in the highest court of the land.