No One Likes Amy Coney Barrett’s Abortion Answer
Nine unelected justices control the outcome of the abortion debate, which feels good only when your side is winning.
Amy Coney Barrett could no longer avoid the question that has defined her nomination to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court: “Do you agree,” asked Senator Dianne Feinstein of California during confirmation hearings today, “that Roe was wrongly decided?”
“I completely understand why you are asking the question,” Barrett responded, looking grave. But “I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not. I don’t have any agenda.” The question may be unavoidable, but that doesn’t mean she will answer it.
We will not know by the end of Barrett’s nomination hearings how she would rule on an abortion-related case. Nearly 50 years ago, the Supreme Court ruled in Roe v. Wade that American women have a constitutional right to end their pregnancies, and since then, the boundaries of the abortion debate have largely been determined by nine unelected justices who have no accountability to voters. For many years, as the Court has continued to uphold abortion rights, this fact has frustrated conservatives, many of whom want the justices to overturn Roe and return the question to the states to decide.
Now that conservatives are winning and are about to hold a definitive majority on the Supreme Court bench, however, liberals are exasperated that they have little ability to get Barrett on the record about what she might do regarding abortion. Barrett maintains that she will be a fair justice and can be trusted to uphold the rule of law, while Democrats have depicted her as a committed conservative ideologue who will surely undermine abortion rights in the United States. The only way to know the answer is to wait and see what she does on the bench, after her lifetime appointment is secure.
Abundant evidence indicates that Barrett personally opposes abortion. She delivered a lecture to the Right to Life club at the University of Notre Dame, where she formerly taught constitutional law. While at the school, she joined an anti-abortion-rights faculty group. She added her name to a letter in the South Bend Tribune criticizing Roe’s “barbaric legacy.” “I signed it on the way out of church,” Barrett said, when questioned about the ad by Senator Patrick Leahy of Vermont. “It was consistent with the views of my church, and it simply said we support the right to life from conception to natural death.” Groups that oppose abortion rights have celebrated her nomination, and religious conservatives have openly hoped that she will one day write the decision that ends the legal right to abortion.
The question before the Senate, however, is whether Barrett would set aside her beliefs and faithfully follow the law as a Supreme Court justice. Barrett has assured senators that this is her intention: “My personal views don’t have anything to do with the way I would decide cases,” she told Leahy. “I don’t want anyone to be unclear about that.”
This has become the standard way Supreme Court nominees approach controversial questions about their views: They don’t answer them. As justification, Barrett pointed to other women who have been nominated to the Supreme Court. During her confirmation hearing, Justice Elena Kagan refused to “grade precedent or give it a thumbs-up or a thumbs-down,” Barrett said. “It would actually be wrong and a violation of the canons for me to do that as a sitting judge.” She described the approach Ginsburg took to her hearings: “No hints. No previews. No forecasts.” Barrett aligned herself with Justice Antonin Scalia, the godfather of conservative legal thought, during her nomination ceremony at the White House, saying, “His judicial philosophy is mine too.” But she would not answer questions about what that meant, especially on contested issues such as abortion, during today’s hearings. “If I were confirmed, you’d get Justice Barrett, not Justice Scalia,” she said.
Barrett seemed to walk into these hearings understanding that Democrats and the media would question her life choices and what they take to be her views. “I’ve tried to be on a media blackout for the sake of my mental health, but you know, you can’t keep yourself walled off from everything, and I’m aware of a lot of the caricatures that are floating around,” she said during an exchange with Senator Lindsey Graham of South Carolina today. She knew that her decision to have a large family, including two adopted children from Haiti, may surprise many Americans. She knew that her faith would become a matter of public debate, particularly after Feinstein told Barrett during a different confirmation hearing in 2017 that “the dogma lives loudly within you, and that’s of concern.” But Barrett stressed that she celebrates pluralism. “I have a life brimming with people who have made different choices, and I have never tried in my personal life to impose my choices on them,” she said. “The same is true professionally.”
No matter how fair and equitable any judge or justice may be, research suggests that their personal views do, in fact, color how they rule. Scholars have argued that ideology and partisanship strongly shape justices’ records. There have been notable exceptions—this summer, for example, one of Donald Trump’s appointees, Justice Neil Gorsuch, wrote a sweeping decision affirming civil-rights protections for LGBTQ people. But most often, the justices decide controversial cases along ideological lines. Barrett comes out of a conservative legal world where scholars have spent significant time discussing which decisions should stand unchallenged, known as “superprecedents,” and which should remain open to revision. In an exchange with Senator Amy Klobuchar of Minnesota, Barrett stated that Roe shouldn’t have that untouchable status. Superprecedents are “cases so well settled that no political actors and no people seriously push for their overruling,” Barrett said. “I’m answering a lot of questions about Roe, which indicates that Roe doesn’t fall in that category.” But, she added carefully, “that doesn’t mean Roe should be overruled.”
Democrats have few tools to prove their case that Barrett’s appointment could lead to the end of constitutionally protected abortion rights in the U.S. Leahy and Feinstein went out of their way to compliment Barrett’s “lovely,” and conspicuously large, family. Senator Sheldon Whitehouse of Rhode Island brought an easel and a series of ominously fonted placards that he scribbled on with red Sharpie, purporting to show that Barrett’s vote on Roe has already been bought by conservative donors.
Even Supreme Court justices can’t unilaterally decide to revisit precedents they don’t like. “Judges can’t just wake up one day and say, ‘I have an agenda. I like guns, I hate guns; I like abortion, I hate abortion,’ and walk in like a royal queen and impose, you know, their will on the world,” Barrett said. Cases have “to wind their way through the process.” Until abortion cases inevitably do wind their way up to the Supreme Court, her role in shaping abortion jurisprudence will be a black box, with nothing voters or legislators can do about it. As Feinstein said, “It’s distressing not to get a straight answer.”