“We increasingly have been trying to get our children to take responsibility for their own,” Barrett reported, “but those efforts are not always successful.”
And so it went during an exercise whose outcome was never in doubt. Every Supreme Court confirmation hearing since that of failed nominee Robert H. Bork in 1987 has been an exercise in evasion. Nominees divulge only as much information as needed to win. Barrett, with the vote well in hand, didn’t need to offer up much.
It is tempting, then, to again pronounce confirmation hearings the “vapid, hollow charade” that Justice Elena Kagan, while still a law professor, found them to be and give up on them entirely. But even Barrett’s hearings, frustrating as they were, offered some useful — and chilling — insights into the new justice.
Sometimes what a nominee won’t say is as telling as what she does. Thus Barrett was willing to pronounce that both Brown v. Board of Education, the landmark school desegregation case, and Loving v. Virginia, which declared anti-miscegenation laws unconstitutional, had been correctly decided. But when it came to a precedent even older than Loving, the 1965 case of Griswold v. Connecticut, Barrett balked.
The court in Griswold found that a constitutional right to privacy protected the right of married couples to obtain contraception. Barrett argued that her view on this case didn’t matter — “an academic question that wouldn’t arise” — because no state in the modern era would consider criminalizing contraception.
But then she contended just the opposite: that she couldn’t offer her view on Griswold because it was anything but academic. “I think the only reason that it’s even worth asking that question is to lay a predicate for whether Roe was rightly decided. Because Griswold does lie at the foundation of that line of precedent,” Barrett told Sen. Christopher A. Coons (D-Del.). “So because Griswold involved substantive due process, an area that remains one subject to litigation all over the country, I don’t think it’s . . . a case that I can opine on.”
Actually, it is: Chief Justice John G. Roberts Jr., and Justices Clarence Thomas and Samuel A. Alito Jr. — among others — all commented on privacy and Griswold in their confirmation hearings. Roberts, in 2005, said, “I agree with the Griswold court’s conclusion that marital privacy extends to contraception.” President Trump’s two previous nominees, Gorsuch and Kavanaugh, largely ducked the question.
Barrett’s studied silence offers yet another indication that she sees no protection for abortion rights in the Constitution. If she’s willing to say that Loving was correct, what’s the significance of her refusal to say the same about the same-sex marriage case, Obergefell v. Hodges? Again, it’s not hard to guess.
Something Barrett was able to talk about — her dissent in a 2019 gun-rights case, Kanter v. Barr — was revealing in a different way. The case involved a Wisconsin man convicted of felony mail fraud — he was billing Medicare for shoddy shoe inserts — and, therefore, precluded under federal and state law from possessing a gun. He argued that that ban was unconstitutional because there was no proof that he posed any danger.
The Supreme Court, ruling in 2008 that the Constitution protects an individual’s right to bear arms, said that right was not absolute. “Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons,” Justice Antonin Scalia wrote for the majority.
In Kanter, two Ronald Reagan-appointed judges voted to uphold the felon ban. Legislatures, they observed, are “far better equipped than the judiciary to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks.”
Barrett disagreed. She acknowledged that the government’s interest in “keeping guns out of the hands of those who are likely to misuse them . . . is very strong.” But, she said, “neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe.”
Flash forward to Barrett before the Senate Judiciary Committee, repeatedly insisting that her role as a judge was limited — that she could not be, as she put it, Queen Amy. “I just don’t have the power by fiat to impose my policy preferences or choose the result I prefer,” Barrett said. “That’s just not my role. I’ve got to go with what you guys have chosen.”
Sen. Richard Blumenthal (D-Conn.) asked Barrett how to square that claim of judicial modesty with her Kanter dissent. That opinion, he said, “seems to usurp the legislature’s role in deciding who should be permitted to have firearms and who should not.”
He never really got an answer. But, as Barrett prepares for a lifetime seat, at least the question is out there — even if it got buried under a pile of more pressing issues, such as the Barrett family laundry.