I do not care about Amy Coney Barrett’s membership in the “People of Praise.” I am uninterested in her religion or her family life. I am not even terribly interested in her credentials, e.g., whether she did a prestigious clerkship, or published a bunch of academic articles, or got good course evaluations as a law professor. One question alone matters to me: what effects would her presence on the Supreme Court have? In other words: how would she rule on issues that matter? Who would be helped or hurt by these rulings? The most important criteria in evaluating a potential justice are their stated values and their prior record, because these are the best evidence we have with which to speculate about what they would do if placed on the nation’s highest court.
In the case of Amy Coney Barrett, an examination of her judicial opinions and public statements reveals a straightforward conclusion: she should not be placed on the Supreme Court, and everyone should oppose her confirmation. On the Court, she is likely to issue rulings that cause significant needless harm to innocent people and make the country a more unjust place, with rulings that erode the rights of workers, immigrants, criminal defendants, and, of course, those who need abortions. Sometimes her opinions have been downright cruel. They disqualify her, full stop.
Let’s begin with an immigration case, one that shows very well how Barrett will undermine basic constitutional rights. Mohsin Yafai is a United States citizen whose wife, Zahoor Ahmed, is a citizen of Yemen. Yafai and Ahmed wanted to live together in the United States, so Ahmed and her children applied (using the correct legal process) for visas. The consular office denied Ahmed’s application on the grounds that she had “attempted to smuggle two children into the United States using the identities Yaqub Mohsin Yafai and Khaled Mohsin Yafai.” It’s not clear why the consular officer believed Ahmed was attempting to “smuggle” children (no evidence was provided to the family), but apparently the consular officer thought the children Ahmed had applied for visas for were not actually her children. In any case, the children, Yaqub and Khaled, had tragically drowned while the applications were pending. Yafai and Ahmed then submitted a large amount of evidence to the consulate, including “vaccination records for the deceased children, school records for the older deceased child, prenatal care and ultrasound records, publications concerning the drowning, a passport for the older deceased child, and complete family photos prior to the children’s deaths.” But the U.S. simply affirmed its existing visa denial, meaning that Mohsin (again, a citizen of this country) could not live here with his wife, Zahoor. The two took the matter to the courts.
Here is where Amy Coney Barrett comes in: she threw out the couple’s case. Writing for two judges on a three-judge panel, she said that it didn’t matter whether the accusation was based on no evidence. It didn’t matter whether Zahood Ahmed provided giant piles of counterevidence showing that the visa denial had been a mistake, and that she had fulfilled the legal requirements to come to the U.S. to live with her husband. It didn’t matter if the officer had just made the smuggling stuff up out of whole cloth. Barrett wrote that because the consular officer had cited a statute (the anti-smuggling one) in denying the visa, the decision was “facially legitimate and bona fide,” and therefore would not be reviewed by the court.
The third judge on the panel, Kenneth Ripple (a Reagan appointee), strongly dissented from Barrett’s judgment. The decision, Ripple said, showed “no respect for the Constitution or Congress” because it meant that the government could simply arbitrarily deny visas to people fully legally qualified for them, who had gone through the correct process and done everything right. And the government could do this based on vague accusations for which it provided no support, and without even pretending to review the applicant’s own evidence disproving the accusation. Under such a standard the law would become (even more of) an utterly meaningless fiction, because one’s rights could simply be trampled upon without it being possible to do anything about it. Ripple wrote:
Here, in a case where the Government asserts no national security interest and where the important familial rights of an American citizen are at stake, the Government asks us to rubber stamp the consular decision on the basis of a conclusory [a legal term meaning “stated as a fact without being proven”] assertion. Although Congress has tasked us, by statute, with the responsibility to prevent arbitrary and capricious government action, we look the other way despite the significant record evidence to refute the Government’s assertion and no suggestion that the consular officer even considered it. Congress did not, and would not, sanction consular officers’ making visa decisions in a purely arbitrary way that affects the basic rights of American citizens. We have the responsibility to ensure that such decisions, when born of laziness, prejudice or bureaucratic inertia, do not stand.
Barrett did not have to do this. Even the anti-immigration Center for Immigration Studies acknowledges that this area of law is “nowhere near settled.” Barrett made a choice to empower the government and disempower immigrants (and, remember, immigrants who follow the law to the letter). Ripple wasn’t the only one of Barrett’s fellow appellate judges to take her to task. In a dissent to an opinion denying Yafai and Ahmed a rehearing, judge Diane Wood (joined by Ilana Rovner and David Hamilton) called the ruling “a dangerous abdication of judicial responsibility” and “a deeply troubling extension of current law” because it “insulat[es the officer] from any shred of accountability.” Wood wrote:
At its root, due process requires that the person subject to a governmental action be given enough information to be able to know what the accusation against her is. A regime in which the consular official can just say“no,” and the US citizen spouse must guess both about the accusation that supposedly supported that decision and—critically—what facts lay behind the “no,” is not worthy of this country.
Judges are usually collegial types, so for one of them to call a decision “unworthy of this country” is a strong statement indeed. But it was necessary, because the implications of Barrett’s majority opinion so seriously threaten people’s basic legal protections.
I dwell on this case in particular because it offers a troubling preview of what Barrett would be like on the Supreme Court—one that will hopefully trouble anyone of any political persuasion who would like the legal system to enforce their rights—and because it sets up the common theme that runs through Barrett’s opinions, which is the same theme that runs through all conservative jurisprudence: a bias toward the powerful and against the powerless.
Let’s look at another, very different, case in which the same theme arises. In 2015, Anna Chronis went to the University of Illinois Mile Square Health Center for a pap smear. Afterward, she experienced pain and bruising. She claimed that she tried to get in touch with the doctor she had seen, but could not get the Health Center to return her calls or let her make a follow-up appointment. She then filed a complaint with the Health Center’s grievance committee “requesting $332 for the expenses that she incurred because of the injury.” The committee denied her claim. She then wrote to the Centers for Medicare and Medicaid Services (CMS), part of the Department of Health and Human Services, which partly funded the Health Center, requesting assistance in gaining “restitution” and attaching 60 pages of documents showing her correspondence with the Health Center. Unsatisfied with the responses she had received (and still without her $332) Chronis sued under the Federal Tort Claims Act.
Barrett, writing for the Seventh Circuit panel, found that Chronis’ case needed to be dismissed on the grounds that she hadn’t followed the correct procedure. This was because her letter to CMS had not explicitly said that she wanted $332, referring only to “restitution,” meaning she had not demanded a “sum certain.” Therefore, she had not exhausted her “administrative remedies,” so she could not come to court. Barrett conceded that Chronis could have had no idea she needed to do this, because Chronis was operating “pro se” (without an attorney) and “even an experienced medical malpractice lawyer” might not have realized that under the Federal Tort Claims Act, CMS themselves might have legal liability for the actions of the University of Illinois Health Center. But even though Chronis could not have known what the procedure was, she violated it, therefore her case needed to be dismissed.
In a dissent, Ilana Rovner (a Bush I appointee) noted the bureaucratic absurdity of the hoops Chronis had to jump through. In evaluating what Barrett was demanding of an indigent plaintiff, it is important we look at it all together:
Chronis, a pro se plaintiff, knew little about the complicated legal world of suing the federal government. She was simply looking for a solution to her problem. She alleged that she had been harmed during a medical appointment at a health center that receives federal funds. She looked for a solution by repeatedly telephoning the doctor whom she alleged harmed her, but that doctor did not help, and indeed did not return any of her numerous calls… She made calls to employees at the health center that employed the doctor, but they would not help… She made several written complaints to the health center’s grievance committee, but it would not help… She filed an appeal with the Illinois Department of Healthcare and Family Services, but it did not help… She mailed a submission to the Centers for Medicare and Medicaid Services (CMS), a federal administrator of the Medicaid Program, but it simply referred her to the Illinois Department of Financial and Professional Regulation… She filed a professional regulation complaint with the Illinois Department of Financial and Professional Regulation, but there is no record of any response… She filed a malpractice claim in state court, but the United States told her that was the wrong place too, and removed the case to federal court. And then, finally, the federal court told Chronis that, after all those calls, steps, letters, claims, and complaints, she had not given the government notice in the proper manner and it too would not help.
As Rovner concluded, Barrett’s position meant that only a seriously legally skilled poor person could ever have their claims properly adjudicated:
[M]odern litigation contains so many traps and barriers that it is near to impossible for non-lawyers to successfully navigate it. Despite Chronis’ valiant and persistent efforts, the majority finds that she failed to say the magic words in the correct format and in the correct place, and therefore the sophisticated steam shovel rolled right over her, as it will other injured pro se plaintiffs who cannot afford to hire lawyers to recover small sums.
In practice, then, those without money are simply unprotected by the law, even when technically it is on their side. Barrett’s majority opinion denies this; she explicitly says that existing procedure “does not make it difficult for pro se plaintiffs to sue the federal government.” This shows Barrett is unaware of basic facts about the litigants whose claims she is supposed to be judging. Judge Richard Posner, who also served on the Seventh Circuit, resigned over the shabby way his colleagues treated pro se litigants (“most judges regard these people as kind of trash not worth the time of a federal judge”) and Barrett’s opinion is an obvious example. (Posner subsequently founded a center to help pro se litigants but soon shut it down for the bizarre, unpersuasive reason that there were simply too many people in need.)
Let us turn to criminal law. The country has recently seen a giant public controversy over the treatment of Black people by the criminal punishment system. Barrett has written several opinions that suggest she will make the problem worse.
In 1994, Mack Sims, who is Black, was convicted of attempted murder. Here is what happened: a security guard named Shane Carey had been sitting in a car in a darkened parking lot. Carey testified that he was approached by a Black man and shot. 15 to 20 minutes later, police found Mack Sims “near a walking path around twenty feet from where the shooting occurred.” They arrested Sims, though Sims did not match Carey’s description of the assailant: Carey had said his attacker had short hair or was bald, and was wearing black combat boots with black pants. Sims had longer curly hair, and was wearing blue jeans and white Nike sneakers when he was arrested. Carey testified that police showed him a picture of Sims while he was in the hospital, and though he was “groggy” and had not been wearing his glasses when he was shot, he identified Sims as the shooter. Carey then identified Sims several more times in lineups. At trial, Carey’s description of Sims became more precise and accurate than it had been before, and he said his “memory had improved.” It turned out, unbeknownst to Sims or his defense counsel, that the prosecution had paid for Carey to be hypnotized, and in his “dream state” he became certain that Sims had shot him. Carey’s testimony was the only thing tying Sims to the crime. There was no physical evidence. After Sims’ conviction, he was sentenced to 35 years in prison.
26 years later—the wheels of justice take their sweet time to go round—the case ended up before the Seventh Circuit Court of Appeals, which granted Sims’ writ of habeas corpus. The court found that the prosecution should have disclosed that they had hypnotized the star witness to “improve” his recollection. But one judge dissented: Amy Coney Barrett, who thought that while the prosecution had indeed violated the defendant’s rights in a way that cast doubt on the verdict, it was not unreasonable for the state court to conclude that they hadn’t violated his rights in a way that cast doubt on the verdict. (If that sentence sounds absurd to you then you probably haven’t been to law school.)
Barrett’s dissent should be deeply troubling, because Sims’ case is such an obvious miscarriage of justice. How on earth could someone be guilty “beyond a reasonable doubt” on the basis of this kind of evidence given how unreliable any kind of eyewitness testimony is (especially from a dark parking lot, without one’s glasses, then refined by police suggestions and hypnosis)? Unfortunately, it can be extremely difficult to overturn obviously flimsy convictions, and the arguments often end up being about things like “whether all evidence was properly disclosed” rather than whether someone should be locked up for 35 years on the basis of testimony riddled with holes. It is very important, though, when a clear injustice has been done, for a judge to do everything possible to find a legal way to rectify that injustice.
Now, I’m sure Barrett would disagree that it is a judge’s role to try to fix injustices. She believed she was just applying the law. But she wasn’t. She was opining on whether it was “reasonable” to keep Mack Sims locked up even though he’d never had a chance to tell the jury the only eyewitness had been hypnotized into certainty. It wasn’t reasonable at all, but Barrett clearly doesn’t understand at all how ludicrously unfair the criminal punishment system is, especially to Black men. This is not just bad “politics” on her part. It is ignorance. She doesn’t get what is going on. Not understanding the basic facts of the issues you’re ruling on should be disqualifying, yet it’s widely tolerated in judicial nominees. (It will probably go completely unquestioned in Barrett’s confirmation hearings.)
Barrett has other rulings on criminal matters that are similarly concerning. In Elston v. County of Kane she dealt with the case of an off-duty police officer who flashed his badge and gun before roughing someone up and putting their arms behind their back as if to arrest them. The question was whether he was trying to act in the service of the police (therefore making the county liable for his conduct). Barrett said that he was not, and that the county was therefore not responsible for what its officer did. In United States v. Wilson, Barrett wrote a concurrence to a decision that officers had reasonable suspicion to use force to detain a Black man when he ran away from them, because he had a “bulge in his pocket” and was in a “high-crime area,” in part because a “reasonable officer could infer from Wilson’s flight that Wilson knew he was in violation of the law.” In fact, this is not a reasonable inference, because a Black man might also flee because he is scared of the police, and if “high-crime area” coincidentally happens to correspond geographically to “Black area” it would mean that legally innocent Black people statistically have less robust constitutional rights than white people. (Wilson, by the way, was wearing a blue shirt while officers had been told they were looking for a Black man in a red or white shirt.) Barrett is evidently utterly unaware of how race in America works and seems unfamiliar with the entire field of sociology. This, of course, should be considered in assessing whether to give someone a position that requires them to make life-altering decisions on issues where race matters. (Naturally, Barrett also believes that “furtive movements” create reasonable suspicion.)
In Biegert v. Molitor, et al., Barrett dealt with the case of a mentally ill man shot to death by police. The man’s mother had called 911 for help because she was concerned he was going to kill himself. When police arrived, they created a disastrous situation by acting like cops instead of counselors, demanding he put his hands behind his back and subject himself to a pat down. The man became agitated and attacked the cops, who then shot him dead. Barrett concluded the shooting was reasonable, looking at the attack on the officers itself rather than the officers’ actions that precipitated it. (The agony of a mother who inadvertently caused the death of her son by trying to help save his life appears nowhere in the court opinion. Why would you expect that to matter?) With Barrett on the Supreme Court, police officers will continue to shoot the mentally ill rather than assisting them. Barrett does not appear to care about this problem, or the fact that her ruling further disincentivizes police from exhausting all other methods than deadly force before resorting to it.
In Torry, et al. v. City of Chicago, et al., Barrett dealt with the case of three Black men who sued the Chicago police over alleged misconduct. In 2014, there had been a drive-by shooting at a school. Witnesses told police that the suspects were three Black men in a gray SUV, possibly a Nissan or a Chevy Trailblazer. Several hours later, the plaintiffs, three innocent Black men in a gray Ford Fusion sedan, drove by the school on their way to and from the auto parts store. The police stopped them, saying (incorrectly) that they had driven by the school “three times” and had “cruised around” it. The plaintiffs videotaped the encounter with police, in which the men in the car begged the police not to shoot them and were roughly handled. There was even testimony that after the police let the plaintiff driver go, they talked of pulling him over again “to mess with him.” Even though the officers couldn’t remember why they pulled the group over and it was abundantly clear that the plaintiffs’ being Black was a huge part of the reason (since their car was a sedan, not an SUV), Barrett believed there was no good reason to conclude the officers lacked “reasonable” suspicion for a stop.
Barrett’s judicial record is actually relatively limited, but there is plenty more in it to set off blaring alarm bells about what she will do as a member of the nation’s highest court. Some notable points:
- Against Immigrants — The Yafai-Ahmed case was not her only bad ruling on immigration. Barrett also ruled that a man, Rafael Herrera-Garcia, who said he feared he “will be tortured by gangs or corrupt government authorities” if he was deported to El Salvador did not qualify to be exempted from deportation under the Convention Against Torture. This was because—while it was indeed reasonably likely that he would be tortured (and many deportees from the U.S. who didn’t grow up in El Salvador have been abused or killed there)—there was no evidence that he specifically was currently being threatened with torture, so the torture was “speculative.” Now, of course, if he actually is tortured in El Salvador, that does not mean he gets to come back. I expect Barrett would say that while he said he would be tortured, and was indeed tortured, what matters is whether there was evidence of prospective torture during the pre-torture period not ex post facto evidence of torture in the post-torture period. (Or some shit like that.) In another case, Barrett’s colleagues suspended Donald Trump’s rule restricting legal immigration by people expected to make “use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid.” Barrett wrote a 40-page dissent defending the Trump administration’s authority to bar immigrants it deems likely to become a “public charge,” meaning that in a second Trump term we could expect Barrett to be extremely permissive toward whatever new unpleasant, family-separating restrictions Stephen Miller dreams up.
- Against Prisoners — In John McCottrell, et al. v. Marcus White, et al., two prisoners sued the federal government because their guards had shot them with shotguns. Some inmates were fighting in the dining hall, and the guards fired their guns in the direction of the crowd as “warning shots” but ended up—shockingly—hitting people. The Seventh Circuit ruled that their claims could go forward. But Barrett dissented, saying that the question regarding firing shotguns in the direction of the prisoners was: “was it to maintain discipline or for the satisfaction of hurting the prisoner?” Unless the guard “intentionally appl[ied] force to a prisoner” he could not be “malicious and sadistic” enough to be legally liable for shooting the prisoner. Note how easy it is for prison guards to get away with misconduct under Barrett’s view. So long as they were trying to “maintain discipline” rather than doing it for their “satisfaction” (extremely difficult to prove) then they could mangle detainees endlessly without incurring liability. In another horrible case, Williams v. Wexford Health Sources, Inc. a prisoner sued the private contractor that provided medical services in the penitentiary. The company had refused to give him cataract surgery based on its “one good eye” policy, which said that so long as one of your eyes still functioned they would not try to stop you from going blind in the other one. In 2011, Williams had developed a cataract in his left eye. Doctors recommended extraction surgery and “warned that without this operation… they would be unable to detect other vision-threatening conditions such as glaucoma.” But since he still had “one good eye,” he couldn’t get the surgery, and Williams’ “vision deteriorated until he was completely blind in [the left eye],” and developed symptoms including “dizziness, acute pain, photophobia, and the feeling that grit or some other substance was in his eye.” He then developed a cataract in his right eye, but Wexford said he still “did not qualify for surgery under Wexford’s policy, because he was not yet blind (or nearly so) in the right eye.” After five years of deteriorating vision with no surgery, Williams filed a grievance. It was denied. He filed another. It was also denied. He appealed the denial. The appeal was not granted. He filed a lawsuit. The lawsuit was dismissed on the grounds that he should have filed a third, different kind of grievance (the “standard” rather than “emergency” grievance). He appealed. The appeal was granted, and the court found that he had done enough to go through the appropriate process. Only Amy Coney Barrett disagreed. Though concurring in the judgment on technical procedural grounds, she thought he had failed to “exhaust” the grievance process. In her opinion, Williams should have spent more time trying, while going blind, to navigate the Kafkaesque prison paperwork nightmare. Nowhere do any of the judges express any deep sense of concern or urgency about Williams’ deteriorating vision, or the health company’s insane and barbaric policy. (If I were a judge, I would order that Williams get his surgery immediately and be paid a substantial sum of money by this evil corporation, whose board of directors should be put on trial. But if I were a judge I would also probably be impeached.)
- Against Workers, Debtors, Consumers — Barrett has also ruled against workers attempting to launch class action suits over wage and hour violations, customers seeking to enforce a company’s warranty after buying a disastrous malfunctioning lemon of an RV, a prospective candidate looking to reduce barriers to ballot access, a city employee trying to get his pension, a consumer pestered with texts from AT&T in violation of the Telephone Consumer Protection Act, workers who hadn’t been paid for the full time they were on the clock, a woman whose IUD broke off inside her, possibly leading her to need a hysterectomy, Grubhub drivers pushing for minimum wages and overtime pay, a debtor whose debt was not confirmed to be accurate by the debt collection agency, and parents whose hockey player son was prescribed drugs by NHL doctors and then died of an overdose. In Casillas v. Madison Ave. Assocs., Inc., Barrett held that even though a company’s interaction with a customer violated the Fair Debt Collection Practices Act, there was nothing the customer could do about it. The law required the company to inform the customer that in order to have their rights enforced, the customer needed to do certain things in writing. Barrett said that because the customer was not injured by the company’s illegal conduct, the legal violation created no legal liability. Tellingly, seeing a company that fails to inform someone properly about their legal rights, Barrett describes them as making a “mistake.” She does not consider the (likely) possibility that the company did not make a mistake at all, but knew that there were no costs to violating the law. She does not see how her own ruling, which makes it easier for companies to get away with violating the Fair Debt Collection Practices Act, will incentivize more illegal behavior. In fact, the dissenting judge pointed out that Barrett’s judgment would “make it much more difficult for consumers to enforce the protections against abusive debt collection practices.”
One of the core differences between the right and the left is that the left has a great deal of concern for the relatively powerless. We look at disputes between immigrants and the government, debtors and debt collectors, injured people and giant corporations that injured them, Black people and the police, workers and employers, prisoners and prison guards, and we understand that one party has, on the whole, much more power than the other, and can hurt or exploit the other with less likelihood of being held accountable. The rules are not applied fairly to all.
Conservatives tend to be less sympathetic to the powerless. This is partly because conservative ideology has a strong element of “justifying the status quo” (after all, that is what it is conserving), meaning that people hold their relative positions in society for some kind of good reason. The successful got where they are because of hard work, the poor or imprisoned are there due to failures of Personal Responsibility. This is why you won’t find many Republican public defenders or legal aid attorneys.
Now you might think this is irrelevant to the law. As I’ve noted before, judges try very hard to pretend they are not “political,” that they do not deal with issues of fairness or justice but simply apply the law as it is written. Their judicial opinions are always written so as to suggest that both logic and legal precedent compel the outcome, that the judge’s subjective values have nothing to do with the result they have reached. Indeed, reading Barrett’s opinions, you might not actually think of her as a conservative idealogue, because every one of them is framed as the mere application of laws that already exist rather than the creation of new law.
But this is a fiction. In fact, judges have to use their “politics,” which is often just another word for their social values. Some cases require a judge to opine on what a “reasonable” person would do, and definitions of reasonableness differ and are influenced by values. (Is it reasonable to think three Black men in a gray car are suspicious?) Judges have to weigh different interests against each other and their conclusions are affected by what they think matters, a value judgment. (Does the principle that the Executive Branch makes immigration decisions matter more than an individual’s constitutional due process rights?) I’ve shown before, looking at both Brett Kavanaugh’s jurisprudence and that of the Supreme Court, how political sympathies influence judging. In Kavanaugh’s case, he was more likely to give credence to an employer’s claims over that of the workers. For Barrett, she is likely to care more about minute bureaucratic procedural issues than whether a person’s rightful legal claims are adjudicated (i.e., she prefers “the set of rules that are good because they’re the rules” over “the set of rules that are good because they help people who need help”). She doesn’t care as much about the powerless, and that affects her judgments, because being a judge requires you to decide how much the claims of the powerless matter.
That is one reason why, while the purely personal aspects of Amy Coney Barrett’s religious faith are irrelevant to examining her as a nominee, the question of how her convictions will influence her work is very important indeed. Barrett herself asserts, wrongly, that it is “never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.” Actually, not only is that incoherent and impossible, but it is not actually a bad thing for Barrett’s Catholicism to affect her work. A judge who says their deepest moral convictions do not matter for their work is a bad judge (or a judge in denial). I therefore do not mind Barrett’s law review article suggesting that a Catholic judge’s faith-based opposition to the death penalty should affect whether they are willing to participate in applying it.
Some have seen in that article an alarming sign that Barrett, despite her word, will bring Christian doctrine to the bench. That’s not the problem. I actually wish the bench was a bit more Christian, at least in the sense of applying the groovy egalitarian spirit of Hippie Jesus. Judges who oppose the death penalty should refuse to take part in enforcing it. (Though personally I think it should lead them to go further and actively overturn every capital sentence.) It is not the fact that Barrett believes values matter to judging that should concern us. It is the particular values she herself holds, and if they are ones we find abhorrent, and it is clear that those abhorrent values will come out in her rulings, that is a very good reason for opposing her nomination.
Let’s talk about the issue of abortion, then, because it is where Barrett’s presence on the court may make an extremely consequential difference. If Roe v. Wade is overturned, states will be able to criminalize abortion, which will lead to the horrifying oppression of indigent women. It would be a disaster, a severe rollback of an important right.
We should assume Barrett would probably vote to overturn Roe, though, for an important reason: where you stand on the legal question partly depends on your moral convictions about abortion. If you believe that abortion is murder, then there is little reason to respect a court precedent granting the right to it. If you believe abortion is not murder, but is instead an important aspect of the right to bodily autonomy, the decision is an important one to protect. Barrett has been cagey about where she personally stands on Roe, though she has said that just because something is a precedent doesn’t mean it demands deference. That’s correct, for the reason I just stated: if a precedent sanctioned mass murder, then one’s opposition to murder should trump one’s belief in the time-honored principle of stare decisis.
The Court’s rulings on abortion are “political,” then, in the sense that justices’ stances are—and should be—at least partly values-based. But that means that it’s perfectly fine to oppose Amy Coney Barrett because we believe her personal convictions about abortion are likely to lead her to support overturning Roe v. Wade. It is perfectly reasonable to say: “I believe in abortion as a fundamental right, and thus I believe a judge who is not openly committed to preserving that right is a bad judge who should not be promoted, because a good judge is one sworn to uphold the rights I believe to be fundamental.” This sounds “subjective” (“I” believe) but that is fine: our convictions about the “good” must be part of our evaluation of the judicial system.
I do not believe Amy Coney Barrett is a good judge. I believe she lacks sufficient empathy toward or curiosity about important classes of people whose interests are important, and that empathy is crucial for making sound factual determinations. I think she would take away, or decline to enforce, crucial rights. She would make people worse off through her decisions, in part because, exactly like Kavanaugh, she does not know enough about the lives of those her work affects. She should be vehemently opposed.
* * * *
As you’ve seen, my view of the law is that a judge’s conception of justice is critical to evaluating their quality as a judge. I think it matters a lot whether a judge hurts people. But there is another view, one Harvard Law School professor Noah Feldman endorses in a Bloomberg op-ed called “Amy Coney Barrett Deserves To Be On The Supreme Court.” (Deserves!)
Feldman’s view is that there is no good reason to oppose Barrett. He says that she is qualified, and that because she is qualified, her “politics” should not affect whether she is placed on the court. Feldman condemns Mitch McConnell for his inconsistent treatment of Barrett and Merrick Garland, but he says that, considered on her own, Amy Coney Barrett is a superb Supreme Court nominee.
Now, as I have noted, Barrett is extremely likely to take away fundamental rights from large numbers of people and thereby cause them tremendous harm. But to Feldman, this is not what matters when assessing a judge. (The word “abortion” does not even appear in his article.) Instead, he says that Barrett is “brilliant,” noting that when he was clerking for the Supreme Court alongside her, he would ask her to help him with tricky legal questions. He says that for “pure legal acumen” she ranks highly, but that she is also a “sincere, lovely person” who is “genuine,” and he has “never heard her utter a word that wasn’t thoughtful and kind,” and therefore she will be a “good justice, maybe even a great one” even if she issues legal opinions that he finds “wrong” or “misguided.” Feldman writes:
I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.
But those are not the basic criteria for being a good justice. “Brilliance” is, in and of itself, utterly worthless. That sounds like an exaggeration, but it isn’t. Some, perhaps nearly all, of history’s most evil people were “brilliant.” We could have a brilliant jurist who believes that brutally torturing ordinary criminal suspects is morally justified, and who sees the Eighth Amendment as permitting such torture. (Perhaps they issue an elaborate 40-page opinion, with 500 footnotes, on why “cruelty” requires the person inflicting pain to derive pleasure from it.) It’s also the case that many people who do bad things are nice to their peers on an interpersonal level. The more important question is not whether you are nice, but whether you are good. If you inflict terrible harm on others, the fact that you do it extremely politely in no way exonerates you. (Leon Trotsky could be a perfect gentleman—and he was wicked smart, too—but he still brutally crushed the Kronstadt rebellion.)
Feldman concedes that judging is inherently “political” and that Barrett is “conservative.” But, he asks, “what of it?” Well, I’ll tell you what of it: her conservatism makes her more likely to take people’s healthcare away! If Barrett helps invalidate the Affordable Care Act, as she has clearly suggested she might, people will lose their insurance and large numbers of them would die as a result. The fact that judging is political is not an ancillary matter. It is hugely consequential in very clear, tangible ways.
I have previously critiqued the use of the term “people you disagree with,” which centrists often use. “What’s wrong with having a person you disagree with on the court?” The term only sounds reasonable because it abstracts away from what the disagreement in question is. It can capture everything from my disagreement with someone who mistakenly thinks Pink Floyd’s later albums were better than their first to my disagreement with someone who thinks eating children is fine and does it regularly. The actual nature of the specific disagreements matters a lot in assessing whether one has an appropriate attitude toward “people you disagree with.”
My colleague Oren Nimni has devastatingly torn into Feldman’s op-ed even more deeply, showing how poorly-reasoned each individual paragraph is, so I do not need to address it further. But I would note that Feldman’s attitude, that credentials matter more than values, is troublingly common especially among legal professionals and legislators. When Kavanaugh was nominated, supposed “liberals” came out to say that he should be on the Supreme Court because he had an impressive resume. Likewise with Neil Gorsuch. Already Feldman is being echoed elsewhere: “Liberals have nothing to fear” from Barrett, runs a Washington Post op-ed headline, although it turns out in the body text that they have “nothing to fear about Barrett’s intellect,” because the writer reassures us she is smart and humble. (As with Feldman’s, the word “abortion” does not appear in the article, because the moment we discuss the actual results of the rulings, “intellect” begins to seem a ridiculous criterion on its own.)
We must get away from the extremely damaging view that formal qualifications and braininess are what matters in a judge. For one thing, only liberals seem to believe this. The right has a conscious project to remake the courts, and doesn’t hesitate to push completely “unqualified” candidates if they’re correct politically (and politically incorrect). The Federalist Society operates in law schools around the country and operates a school-to-judiciary pipeline that funnels new ideologues onto the bench. There is no left equivalent. Ruth Bader Ginsburg declined to retire under Obama in part because this would seem political, though Anthony Kennedy had no such refined scruples. It’s even considered rather improper to bring up politics in elite legal circles; my colleague Vanessa A. Bee points out that when she was in law school, “when a professor asked you in front of the class why a conservative justice would rule one way in one case and contradict himself in a later case, it was considered unsophisticated to answer with: ‘because they’re a conservative and want the conservative outcome.’”
Unless we are open about the fact that political values matter, it is indeed hard to find reasons to oppose “qualified” conservative justices. But that is absurd: it matters a hell of a lot whether a person is likely to take your most fundamental rights away. In fact, I would go so far as to say that I would prefer as a justice a person with no legal credentials whatsoever, who barely even understands what a law is but is committed to doing right by others. Yes, better the virtuous doofus than someone who has published a large number of law review articles and clerked for Scalia but accepts horrible injustices as fine, and declines to use their power to rectify those injustices because they voluntarily subscribe to a particular theory of textual interpretation.
It is not crazy to say that what a judge will do should matter. There is ample evidence Amy Coney Barrett will act in ways contrary to basic principles that ought to be universally held. She should not be on the Supreme Court, and that shouldn’t be controversial to say.