Barrett may beGinsburg’s polar opposite on Court
Amy Coney Barrett paid homage to Justice Ruth Bader Ginsburg in her White House speech Saturday as a shatterer of glass ceilings. She said she would be mindful of the woman whose place she would take on the Supreme Court.
She even commented that her children think their father is the better cook, much as Ginsburg used to talk about her husband’s prowess in the kitchen.
But the replacement of the liberal icon Ginsburg, the second woman to serve on the high court, by Barrett, who would be the fifth, would represent the most dramatic ideological change on the Supreme Court in nearly 30 years and cement conservative dominance of the court for years to come.
Barrett, a judge on the federal appeals court based in Chicago, made clear in her Rose Garden address that she looks to conservative Justice Antonin Scalia,
for whom she once worked, and not Ginsburg, on matters of law.
“His judicial philosophy is mine, too. Judges must apply the law as written. Judges are not policy makers,” Barrett said. She was referring to their common method of interpreting laws
and the Constitution based on what they were understood to mean when they were written.
Ginsburg, who died this month at age 87, and Scalia were dear friends, but they were on opposite sides of the most divisive issues of the day.
Barrett’s conservative judicial record, her writings and speeches suggest that she toowould beGinsburg’s polar opposite on a range of issues that include abortion and guns.
Barrett has cast votes suggesting she would uphold state abortion restrictions that Ginsburg found violated the Constitution. Barrett also favors a more expansive interpretation of gun rights.
Ginsburg believed deeply that the Constitution protects a woman’s right to an abortion. She was a firm opponent of a broad reading of the constitutional right to “keep and bear arms.”
The differences don’t stop there. Barrett has been critical of Chief Justice John Roberts’ opinion upholding the Affordable Care Act, which is again facing a constitutional challenge at the Supreme Court. Ginsburg was one of five votes that saved the law on two prior occasions.
If Barrett is confirmed before the Nov. 3 election, she would get a chance to weigh in on the latest lawsuit to overturn Obamacare, which is set for arguments a week later.
The contrast between Ginsburg and Barrett most resembles the differences between Justice Thurgood Marshall and the man who replaced him in 1991, Justice
Clarence Thomas.
Marshall was part of the majority in the 1973 Roe v. Wade decision that declared a nationwide right to abortion. In his first year on the court, Thomas joined a dissenting opinion arguing that Roe should be overturned.
Marshall was a firm supporter of affirmative action programs in education and a fervent opponent of the death penalty. Thomas holds opposing views on both issues.
The backgrounds of Barrett and Ginsburg also are very different. Barrett is a Catholic from New Orleans. The Brooklyn-born Ginsburg was Jewish. Barrett had the chance to serve as a Supreme Court clerk. Ginsburg was able to secure a clerkship with a lowercourt judge only after the intervention of a law school professor.
But they both taught at law schools and became appeals court judges in their mid- to late- 40s. The both focused on procedural and technical legal issues in their scholarship.