Beyond Politics: The Controversy Behind the Barrett Confirmation

Written by Connie Xie

Although the debate over the nomination and confirmation of now-Justice Amy Coney Barrett for the Supreme Court has been a contentious topic between political parties, its legal implications and  potential influence on the Supreme Court are also hefty points of consideration. 

There is much debate over whether President Trump should have been permitted to begin the confirmation process for selecting a new Justice so close to an election. When President Obama nominated Merrick Garland eleven months before the end of his term, Senate Republicans invalidated the proposal, citing the Thurmond Rule, a principle that establishes that a president should not nominate anyone for a seat as a Supreme Court Justice when a presidential election is approaching. However, the Thurmond Rule is not a formal rule, meaning it “can be changed by party leaders alone”, wrote CAS’s Professor Steven Kelts in a response to an email interview. Further, when Senate Democrats cited the Thurmond Rule recently, Senate Republicans responded by stating that it was up to them to decide whether to invoke it, as they constitute the majority. “Informal rules are, in that sense, more about ethics,” wrote Professor Kelts: “when broken, they indicate the fraying of a relationship. In this case, the relationship people are worried about is Americanness”. Indeed, writes Stern professor Maria Patterson, “There is some logic behind not confirming a justice close to an election, but ‘close’ is in the eyes of the observer. There is no logic to arguments based on who controls the Senate. That is simply the exercise of political power.” Thus, the subjectivity of the ethical contention behind the GOP’s selective exercise of the Thurmond rule serves as a major flame-stoker in the controversy of the Barrett confirmation. 

Perhaps the most conspicuous factor at hand about Barrett herself is that Justice Barrett is a conservative. Her confirmation tipped the Court’s conservative-liberal balance to a 6-3 ratio. Democrats have pointed out that Barrett served as a trustee on the school board of three private religious schools that restricted admissions to children of single parents and to children whose parents are married, as gay marriage was still prohibited in both states the schools occupied at the time. However, Barrett herself has countered that she intends to keep her personal views separate from her duties as a Justice. She has also stated that she has no intention of discriminating on the basis of “sexual preference”, a phraseology deemed offensive to the LGBTQ+ community since it implies that being queer is a choice rather than a natural state. She has also been accused of being racist despite having two Black children, since she wrote an opinion for Smith v. Illinois Department of Transportation that argued that usage of the “n-word” did not necessarily indicate a “hostile work environment”. When questioned about this during her Senate hearings, she misrepresented the case by claiming that the plaintiff who brought the suit due to a hostile working environment failed to incorporate his employer’s usage of the “n-word” into the evidence he presented in court. This was ultimately untrue, as the plaintiff’s attorneys did present clear proof that he was called a “stupid a** n-word”. “Political opinions arise from background, judgment, and experience, among other things. Roberts described judges as like umpires calling balls and strikes”, states Professor Patterson. But in the grey zone “where it’s all about judgment and comparison to what’s called in other instances”, she states, the analogy of a “flagrant foul in basketball” would be more appropriate.

Justice Barrett’s personal history and word choice in relation to LGBTQ+ individuals, in addition to her largely “conservative” voting record, seem to show that her personal political views will in fact impact her role as a Justice. However, Barrett’s voting history owes itself not only to the conservative-liberal dichotomy, but in part to the originalist-living-constitutionalist dichotomy as well. Although there is some degree of correlation between originalism and conservatism, the originalism-living-constitutionalism split is the factor that determines the judicial philosophy with which a judge interprets the law. Originalists generally believe that the Constitution should be interpreted the way it was written at the time it was adopted, while living constitutionalists believe that the meaning of the Constitution was not intended to be fixed, but to evolve to fit the needs of society as it develops. Prominent originalists include Clarence Thomas, and to some extent Alito and Roberts as well. Antonin Scalia was another notable originalist-leaning Justice, with whose judicial philosophy Justice Barrett has publicly associated herself many times. One argument in favor of originalism, that Justice Barrett echoed during her hearings, is that it limits the subjectivity judges themselves could bring to debates. 

With regard to Barrett’s originalism, it has been suggested that, since she wrote about the legal grounds for weakening cases like Roe v. Wade, she might attempt to use future cases to minimize the constitutional impact they established. Still, the current conservative majority is already beginning to move towards those ends. On this topic, Professor Kelts writes: “I wouldn’t expect even the remaining (thin) threads of Roe to survive the coming term… but I didn’t expect that in the absence of Barrett either.” However, Professor Patterson states that overturning Roe might not be deemed an important target by pro-life activists: “…there’s really no need for anti-choice activists to overturn Roe. Instead, with respect to abortion rights, states can keep putting on restrictons, and the Court could rule that those restrictions aren’t an undue burden under Planned Parenthood v. Casey.” Though there  is widespread hearsay about Barrett’s intentions to challenge Brown v. Board of Education, Professor Patterson states that it is “exceedingly unlikely”, since “Coney Barrett has described it as superprecedent” in some of her writings.

In closing, the Barrett confirmation has been a point of debate on two counts: first, whether this debate should exist in the first place, given the informal Thurmond Rule; and second, what consequences installing Barrett on the Supreme Court might bring. As for the latter, perhaps only time will tell.