CHICAGO – President Donald Trump’s nominee to the Supreme Court has expressed unease with some landmark rulings, including ones that established a right to abortion, and has suggested in her academic writing that she may be willing to reconsider those decisions.
The question of whether Amy Coney Barrett, a one-time clerk to former conservative Justice Antonin Scalia, would actually try to overturn Roe v. Wade, the high court’s 1973 ruling recognizing a woman’s right to an abortion, and other long-established precedents looms large as she heads into Senate confirmation hearings next week.
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A review of Barrett's writings and speeches as a Notre Dame law professor for the 15 years before she became a federal appeals court judge in 2017 reveal a nuanced thinker cautious about stating her personal views. She has never said publicly she would overturn Roe, or other precedents expanding abortion rights.
But she has clearly left the door open to that possibility.
“Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds,” she said in a 2013 Texas Law Review article. She also describes the high-court tradition of heeding previous rulings, or precedent, as a “soft rule” and not “an inexorable command.”
Barrett, 48, has styled herself as the heir to Scalia, and in writing about Scalia’s judicial philosophy, she reveals her own.
To buttress her legal analyses, she nearly always brought up Scalia, for whom she clerked in the late 1990s. Moments after Trump named her at the White House to fill the seat vacated by Ruth Bader Ginsburg’s death, Barrett paid homage to Scalia, saying, “His judicial philosophy is mine, too.”
At the center of that shared philosophy is a strict form of constitutional interpretation called originalism, which Scalia championed. In deciding if a current law is unconstitutional, originalists put the focus on the original meanings of words in the Constitution.
Scalia criticized more liberal justices for creating new rights, like abortion, that he said the framers of the Constitution couldn’t have foreseen. He argued, as Barrett and other originalists have, that new rights should be extended by constitutional amendments, not by courts.
Scalia said in a 2012 CNN interview that the high court's finding in Roe v. Wade that the Constitution includes a right to privacy, and thereby protects a woman’s choice to have an abortion, “does not make any sense.” Neither, he said, do arguments by anti-abortion groups that abortion deprives fetuses due process rights.
“My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad … the Constitution does not say anything about it,” Scalia said.
Scalia, who like Barrett was a Catholic, said the Constitution leaves the question up to the states.
“What Roe v. Wade said was that no state can prohibit it,” he said. “That is simply not in the Constitution.”
But Scalia often struck a pragmatic chord, warning that reversing some precedents could shatter trust in the Supreme Court. Barrett highlighted his caution about casting established precedent aside in a 2017 Notre Dame Law Review article. She quoted Scalia as saying: “I am an originalist. I am not a nut.”
“His commitment to originalism,” Barrett wrote in the same piece, “did not put him at continual risk of upending settled law. If reversal (of precedent) would cause harm, a Justice would be foolhardy to go looking for trouble. Scalia did not.”
But might she?
Barrett did agree with Scalia in her 2013 Texas Law Review article that legal chaos could ensue if justices overturn precedents on which courts, lawyers and the public at large have for so long relied.
“People,” she wrote, “must be able to order their affairs, and they cannot do so if a Supreme Court case is a ‘restricted railroad ticket, good for this day and train only.’”
But she has also suggested that Roe v. Wade and later rulings on abortion may not be in the category of precedents that are untouchable.
Controversy around cases like Roe pointed to the public’s rejection of the idea of “a permanent victor in a divisive constitutional struggle,” she wrote in the Texas Law Review article.
“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”
The staying power of precedents, she went on, is not necessarily in their support by courts but in the broad, popular acceptance of them.
Among several cases she described in the 2013 article as clearly immune from bids to overturn them was Brown vs. Board of Education, which found racial segregation in schools was unconstitutional.
“Scholars,” she said, “do not put Roe on the superprecedent list (the list of untouchable precedents) because the public controversy about Roe has never abated.”
Her critics say such arguments put Barrett outside the mainstream of legal scholarship.
“Barrett takes the extreme view, unsupported by virtually anyone in the legal community, that a judge does not have to adhere to precedent if she believes a case was wrongly decided,” the Alliance for Justice has said, saying it shows she is open to the possibility of reversing Roe v. Wade.
Jamal Greene, a professor at New York’s Columbia Law School, said Barrett could stop short of shooting down Roe v. Wade and other abortion-rights precedents — and still end up gutting them.
“There is room for someone like her who takes Scalia’s position to not vote to overturn precedent — but to never see any abortion restriction that she sees as unconstitutional,” he said.
While Barrett has suggested she is nearly perfectly aligned with Scalia, Greene said she may be farther to Scalia’s right and nearer to current conservative Clarence Thomas.
“Thomas’ position is that if a precedent was wrongly decided, then you vote to overturn it,” Greene said. “Justice Scalia distanced himself from that. … It sounds like Barrett is trying to associate herself with a position just short of Thomas’ position.”
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Associated Press writers Michelle Smith in Providence, Rhode Island, and Michael Biesecker in Washington contributed to this report.
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Follow Michael Tarm on Twitter at http://twitter.com/mtarm