Barrett may be open to reversing Roe v. Wade
President Donald Trump’s nominee to the Supreme Court has expressed unease with some landmark rulings, including ones that established a right to abortion, and has suggested in her academic writing that she may be willing to reconsider those decisions.
The question of whether Amy Coney Barrett, a onetime clerk to former conservative Justice Antonin Scalia, would actually try to overturn Roe v. Wade, the high court’s 1973 ruling recognizing a woman’s right to an abortion, and other longestablished precedents looms large as she heads into Senate confirmation hearings next week.
A review of Barrett’s writings and speeches as a Notre Dame law professor for the 15 years before she became a federal appealscourt judgein 2017 reveal a nuanced thinker cautious about stating her personal views. She has never said publicly she would overturnRoe, or other precedents expanding abortion rights.
But she has clearly left the door open to that possibility.
“Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds,” she said in a 2013 Texas Law Review article. She also describes the high-court tradition of heedingprevious rulings, or precedent, as a “soft rule” and not “an inexorable command.”
Barrett, 48, has styled herself as the heir to Scalia, and in writing about Scalia’s judicial philosophy, she reveals her own.
To buttress her legal analyses, she nearly always brought up Scalia, for whom she clerked in the late 1990s. Moments afterTrumpnamed her at the White House to fill the seat vacated by Ruth Bader Ginsburg’s death, Barrett paid homage to Scalia, saying, “His judicial philosophy is mine, too.”
At the center of that shared philosophy is a strict form of constitutional interpretation called originalism, which Scalia championed. In deciding if a current law is unconstitutional, originalists put the focus on the originalmeaningsofwords in the Constitution.
Scalia criticized more liberal justices for creating new rights, like abortion, that he
said the framers of the Constitution couldn’t have foreseen. He argued, as Barrett and other originalists have, that new rights should be extended by constitutional amendments, not by courts.
Scalia said in a 2012 CNN interview that the high court’s finding in Roe v. Wade that the Constitution includes a right to privacy, and thereby protects a woman’s choice to have an abortion, “does not make any sense.” Neither, he said, do arguments by anti-abortion groups that abortion deprives fetuses due process rights.
“My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad … the Constitution does not say anything about it,” Scalia said.
Scalia, who like Barrett was a Catholic, said the Constitution leaves the question up to the states.
“What Roe v. Wade said was that no state can prohibit it,” hesaid. “That is simply not in the Constitution.”
But Scalia often struck a pragmatic chord, warning that reversing some precedents could shatter trust in the Supreme Court. Barrett highlighted his caution about casting established precedent aside in a 2017 Notre Dame Law Review article. She quoted Scalia as saying: “I am an originalist. I amnot a nut.”
“His commitment to originalism,” Barrettwrote in the same piece, “did not put him at continual risk of upending settled law. If reversal (of precedent) would cause harm, a Justice would be foolhardy to go looking for trouble. Scalia did not.”
But might she?
Barrett did agree with Scalia in her 2013 Texas Law Review article that legal chaos could ensue if justices overturn precedents on which courts, lawyers and the public at large have for so long relied.
“People,” she wrote, “must be able to order their affairs, and they cannot do so if a SupremeCourt case is a ‘restricted railroad ticket, good for this day and train only.’”
But shehasalsosuggested that Roe v. Wade and later rulings on abortionmay not be in the category of precedents that are untouchable.