No Supreme Court nominee is a completely safe bet. No one — not even the nominee himself or herself — knows for certain how he or she would rule on a particular case until the moment arises.
When the Supreme Court explicitly weighed overturning Roe v. Wade and eliminating constitutional protection for abortion rights in 1992, for instance, Justice Anthony M. Kennedy
provided the fifth vote to prevent that outcome. But Kennedy’s vote in an abortion case three years earlier made that position surprising — including, perhaps, to the justice himself.
And yet: Of all the potential Supreme Court nominees that President Trump is considering, the one who seems most inclined to undo Kennedy’s work and overturn Roe as completely and quickly as possible is Amy Coney Barrett, a 46-year-old
newly minted (last November) federal appeals court judge.
Maybe any of those on Trump’s Federalist Society-vetted list would leap at the chance to dump Roe, or at least to interpret the current standard — limits on abortion are permissible if they do not constitute an undue burden — in a way that would drain it of real meaning.
The latter presents a real risk, as another leading contender, federal appeals court judge Brett Kavanaugh, vividly demonstrated in a recent ruling that it was not an undue burden to force a 15-week-pregnant 17-year-old
undocumented immigrant to wait to get an abortion while authorities searched for a sponsor for her. Amazingly enough, Kavanaugh, who complained that the appeals court majority was providing a right to “immediate abortion on demand,” is being criticized from the right for not going even farther.
But there remains a big difference between outright overruling and cramped interpretation. And while Barrett has the shortest judicial paper trail of the likely nominees, her academic writings are the equivalent of a flashing neon sign: I’ll do it.
This outcome can be predicted from two strands of Barrett’s writings. The first is her 1998 article with John H. Garvey, “Catholic Judges in Capital Cases,” discussing the ethical obligations faced by judges who are observant Catholics and who are called on to handle death-penalty cases. What comes through in Barrett’s discussion is her thoughtfulness, deep commitment to her faith — and moral opposition to abortion.
The article asks how judges, “obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty” should balance that against the duty “to adhere to their church’s teaching on moral matters.” Barrett and Garvey ultimately conclude that “if one cannot in conscience affirm a death sentence the proper response is to recuse oneself.”
Repeatedly, however, they distinguish between capital punishment and abortion or euthanasia. “Criminals deserve punishment for their crimes; aged and unborn victims are innocent,” they write.
And in endorsing judicial recusal, they cite a law review article urging the same result for an anti-abortion judge who is compelled by precedent — and the status of being a lower-court judge — to uphold that right.
“The abortion case is a bit easier, we think,” they write. “Both the state and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child, whereas the moral objection to capital punishment is not that it is unfair to the offender.”
Okay, but does that mean Barrett would overturn Roe? Here is where the second strand comes in: a series of law review articles in which Barrett outlines her view that the Supreme Court should not be so tightly bound by the doctrine of adhering to precedent — stare decisis — especially on matters of constitutional law.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in 2013.
In a 2003 article, Barrett called for a more “flexible” understanding of stare decisis, arguing that courts should be less focused, in deciding whether to overrule a case, on so-called reliance interests — the degree to which a decision has been woven into the settled expectations of those affected.
When “a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent,” she writes. “Reliance interests count, but they count far less when precedent clearly exceeds a court’s interpretive authority.”
Reliance interests like, say, what the court plurality relied on in 1992, in deciding not to overrule Roe: “for two decades . . . people have organized intimate relationships . . . in reliance on the availability of abortion in the event that contraception should fail.”
Maybe a Justice Barrett would be more cautious than Notre Dame Law School Professor Barrett sounds. Maybe the chief justice would be reluctant to pull the trigger on Roe with just five votes. But this is already a court that has proved its willingness to overrule inconvenient precedents by a single vote. Adding Barrett would pose a clear and present danger to abortion rights.
“However cagey a justice may be at the nomination stage,” Barrett observed in 2013, “her approach to the Constitution becomes evident in the opinions she writes.” By then, of course, it would be too late.