We can, and should, examine Barrett’s record, on the bench and in academia. So Barrett’s decision to sign a newspaper advertisement in 2006 that decried the “barbaric legacy” of Roe v. Wade is instructive — if any more were needed to deduce her inclinations on that case. “You don’t know her view on Roe v. Wade,” Trump lectured Democratic nominee Joe Biden at Tuesday’s debate. “You don’t know her view.”
Oh, please. This from someone who vowed, during a debate with Hillary Clinton four years ago, that overturning Roe “will happen automatically, in my opinion, because I am putting pro-life justices on the court.”
But let’s imagine there’s still some uncertainty here. One way to examine how a Justice Barrett will rule is to examine the jurisprudence of Scalia, for whom she clerked in 1998 and 1999. The late justice repeatedly — and scathingly — made clear that he did not believe in any constitutional protection for abortion rights, and that the court was being cowardly by refusing to fix its error.
In 1989, when Justice Sandra Day O’Connor argued that “a fundamental rule of judicial restraint” required the court to avoid reconsidering Roe, Scalia was dismissive: That position, he said, “cannot be taken seriously.” Three years later, in 1992’s Planned Parenthood v. Casey, when O’Connor and a court plurality reaffirmed the essence of Roe, Scalia said the issue “is not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course, it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.”
It is fair, given Barrett’s comments, to ask the nominee: Would a Justice Barrett agree? Is she sure, too?
Barrett’s alignment with Scalia has implications far beyond Roe.
Start with gay rights. Scalia issued a ferocious dissent in Lawrence v. Texas in 2003, when the court overruled its 1986 holding that states could criminalize homosexual conduct. “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable . . . the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity,” Scalia wrote.
He lambasted the ruling as “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
A dozen years later, in Obergefell v. Hodges, when the court majority took the step that Scalia had forecast and ruled that the Constitution protects the rights of gays and lesbians to marry, Scalia was even more dismissive. “I write separately,” he observed, “to call attention to this court’s threat to American democracy.” He termed the ruling “a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government,” adding, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Would a Justice Barrett agree? Do states have an interest in making homosexual conduct criminal? Was Obergefell a threat to democracy?
Then there’s Scalia on gender discrimination. When the court in 1996 ruled that Virginia Military Institute’s male-only admission policy violated the constitutional guarantee of equal protection, Scalia was the sole dissenter from Ruth Bader Ginsburg’s opinion for the majority.
The court, Scalia wrote, “enshrines the notion that no substantial educational value is to be served by an all men’s military academy — so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States — the old one — takes no sides in this educational debate, I dissent.”
Would a Justice Barrett agree? Does the constitutional guarantee of equal protection not apply here?
Or Scalia on affirmative action in higher education. In 2003’s Grutter v. Bollinger, when the court narrowly upheld the University of Michigan Law School’s policy that used race as a factor in admissions, Scalia, dissenting, called the approach “a sham to cover a scheme of racially proportionate admissions” — one not permitted by the Constitution. In a 2014 case, he criticized the court’s “sorry line of race-based admissions decisions.”
Would a Justice Barrett agree? Is this impermissible race discrimination?
One thing that’s striking about all four of these areas is that Scalia was in dissent. One thing senators should explore — and that the public should weigh — is what could happen now, when the court’s conservative composition means that his former clerk could translate his angry dissents into controlling law.
Read a letter responding to this opinion column: America might be very different if the Founders had been originalists
Jennifer Rubin: The Senate must abide by CDC guidelines — even if it means delaying Barrett’s confirmation hearings