By Joan Biskupic, CNN legal analyst & Supreme Court biographer
Updated: Thu, 15 Oct 2020 19:42:48 GMT
If Judge Amy Coney Barrett rules in the vein she testified before the Senate Judiciary Committee this week, Americans' personal privacy rights would be pushed back more than a half century. She would similarly diminish voting rights rooted in the 1960s. And she would, based on her scrutiny for regulators and apparent skepticism for the science of climate change, erect a tall hurdle for regulation of the environment.
To be sure, Barrett carefully declined to reveal much of her mind during three days in the witness chair. But by what she would not say, she broke with other justices -- and not only the liberal she would succeed, Ruth Bader Ginsburg, who pioneered women's legal rights.
The 48-year-old appellate court judge and Notre Dame professor separated herself from fellow conservative jurists, including Chief Justice John Roberts. She appears to be more conservative than any Supreme Court candidate since the 1991 appointment of Justice Clarence Thomas.
Barrett's nomination is notable for more than its speed. It offers a sharp turn for a Washington confirmation machine built on a presumption that vocal opposition to Roe v. Wade, the 1973 milestone that made abortion legal nationwide, would doom the nominee.
"This is the first time in American history that we've nominated a woman who's unashamedly pro-life and embraces her faith without apology," said Judiciary Committee Chairman Lindsey Graham, a South Carolina Republican.
With Barrett, a devout Catholic and mother of seven who has written as a scholar on faith and law, that could mean more than rejection of the 1973 case that said women have a constitutional right to end a pregnancy.
Barrett declined to endorse the 1965 landmark, Griswold v. Connecticut, that led to Roe but more fundamentally established personal privacy rights for couples who would use contraception. The Supreme Court by a 7-2 vote struck down a Connecticut law that criminalized, with possible fine and jail time, the use of contraceptives.
Consider how Roberts answered a question about that case during his 2005 confirmation hearing: "I agree with the Griswold Court's conclusion that marital privacy extends to contraception and availability of that," Roberts told senators after he had been nominated by Republican President George W. Bush. "The court since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the (Constitution's) Due Process Clause."
Added Roberts, "I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the Court again. It was surprising when it came before the court in 1965, I think, to many people."
Roberts may be the bane of hard-right conservatives because of some votes, notably those upholding Obamacare. But Roberts is no liberal. He has consistently voted to strike down campaign finance regulation, to end racial remedies such as campus affirmative action, and to bolster public aid for religious schools and other faith-based interests.
Justice Samuel Alito, another Bush nominee and further to the right than Roberts, endorsed the Griswold case during his 2006 Senate hearing. When asked, "do you accept the legal principles articulated in Griswold v. Connecticut, that ... the Constitution carries with it the right to privacy?" he responded, "I do agree that the Constitution protects a right to privacy, and it protects the right to privacy in a number of ways."
In 2017, Neil Gorsuch, Trump's first appointee, was more reluctant to address precedent on privacy but told senators of the Griswold case, "It is 50 years old. The reliance interests are obvious. It has been repeatedly reaffirmed. All very important factors again in analyzing precedent."
Gorsuch, along with Roberts and Alito, took pains to conceal any disagreement with Roe v. Wade, understanding its contentious place in confirmation politics.
The veil of ambiguity over Roe was lifted by Graham and, before that, by President Donald Trump himself, who vowed to appoint justices who would reverse Roe v. Wade.
When Democratic senators pressed Barrett on her position on abortion rights, she emphasized that her personal beliefs would not affect her judicial views.
"I have no agenda to try to overrule Casey," she said, referring to the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, that reaffirmed Roe. "I have an agenda to stick to the rule of law and decide cases as they come."
The Supreme Court has ruled in several abortion cases since 1992, but the Casey dispute stands as the fullest test -- and affirmation -- of the central holding of Roe v. Wade. The 1992 decision, authored jointly by Republican appointees Sandra Day O'Connor, Anthony Kennedy and David Souter, said government may not put an "undue burden" on a woman seeking to end a pregnancy.
In her hearings this week, Barrett established a new pattern of silence as she declined to reveal her view on the Griswold privacy precedent. She did say the 1965 case was, "very, very, very, very, very, very unlikely to go anywhere." That's because, she said, it is "unthinkable that any legislature would pass such a law" against the use of birth control.
Originalism, voting and regulations
Barrett has been clear about her originalist views of the Constitution, grounding her interpretations of the law in the framers' 18th century views. She was equally clear in her refusal to elaborate on how her originalist interpretations would play out. And she resisted more than past nominees to offer even general principles of law.
Yet her silence in particular areas may have been revealing, not only on constitutional privacy.
Repeatedly pressed to acknowledge that voter discrimination based on race still exists, she demurred. She may have wanted to avoid comment on federal protections for voting rights -- a hot topic at the high court -- but she was being asked to express mere agreement with Roberts' statement about lingering voter bias
As Roberts in 2013 had led the majority to a narrow construction of the 1965 Voting Rights Act, saying different treatment for states with a history of discrimination no longer was necessary, Roberts had also asserted: "At the same time, voting discrimination still exists; no one doubts that."
Barrett declined to agree or disagree with that assertion.
"I will not comment on what any justice said in an opinion," she told California Democrat Sen. Kamala Harris, "whether an opinion is right or wrong or endorse that proposition."
To persistent replay of the Harris query on voting, Barrett said she would agree that general racial bias still exists, but she would not comment on discrimination at the polls that has been a national concern. "I'm not going to express an opinion because these are very charged issues," she said.
She also begged off questions about what constitutes illegal voter intimidation.
Separately, Barrett did not acknowledge concerns over the climate crisis. "I've read things about climate change," she told Louisiana Republican Sen. John Kennedy. "I would not say that I have firm views on it."
Later, in follow-up questioning from Harris, Barrett said, "If a case comes before me involving environmental regulation, I will certainly apply all applicable law deferring when the law requires me to. ... The Administrative Procedure Act does require courts to defer to agency fact-finding and to agency regulation when supported by substantial evidence."
Trump and his legal team have looked for judicial candidates who would curb regulatory power. They say government has grown too big and encroaches on business and individual activities.
Graham defended Barrett's limited answers in testimony, saying she was adhering to the practice of past nominees to the high court. Acknowledging that Ginsburg had revealed her views regarding abortion rights in her 1993 hearings, Graham said Ginsburg "embraced the pro-choice point of view."
But Graham added, "That's not being candid about the law. That's candid about who you are. It's clear to everybody watching these hearings that you and your family are pro-life, that you are a practicing Catholic, and you adhere to the tenets of your faith."