Trump’s pick to replace RBG is no judicial radical

Judge Amy Coney Barrett is a distinguished scholar whose judicial philosophy balances a commitment to originalism with a respect for precedent. Dire predictions circulate about the consequences of adding another conservative-leaning justice to the Supreme Court, but Barrett’s record suggests that she will do credit to the institution.

Barrett has earned lavish praise from colleagues across the ideological spectrum. Now, however, with a Supreme Court seat in the balance, Barrett has become the subject of scathing — and misguided — criticism from the left. The Washington Post’s Ruth Marcus, for example, asserts that Barrett “would not hesitate to jettison decisions with which she disagrees,” a glaring mischaracterization of the nominee’s record on adherence to precedent.

Barrett has, in fact, defended the Supreme Court’s existing presumption in favor of stare decisis — a presumption that promotes stability while affording the justices’ flexibility to depart from precedent.

Before overruling a precedent, according to Barrett, a Supreme Court justice must “think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.”

Barrett has also recognized the concept of “super-precedents” such as Brown v. Board of Education that enjoy such broad consensus that no judge would seriously consider overturning them. Barrett’s fidelity to precedent is evident from cases like Price v. City of Chicago (2019), in which she joined an opinion relying on the Supreme Court’s ruling in Hill v. Colorado (2000) to uphold a Chicago ordinance that bars anti-abortion protestors from approaching within eight feet of women entering an abortion clinic.

Given her views on stare decisis, it appears unlikely that Barrett would vote to overturn the court’s 1973 decision in Roe v. Wade; however, she would likely be more sympathetic than the late Justice Ruth Bader Ginsburg was to state laws that limit the unfettered right to abortion on demand. In a 2018 case, Planned Parenthood v. Commissioner, for example, Barrett joined a dissent that cast doubt on a Seventh Circuit decision that struck down an Indiana law prohibiting abortions motivated solely by the race, sex, or disability of the fetus.

As a professor and a judge, Barrett has been a proponent of textualism, the doctrine that courts should apply a statute’s text as it was understood by those who enacted the statute. In constitutional law, this doctrine is better known as “originalism” — that is, a commitment to the original public meaning of the Constitution’s various provisions.

Barrett’s defense of this interpretive approach is not a mere pretext to achieve conservative results; rather, it is based on judicial deference to the democratic process that gives statutes their legitimacy.

Barrett’s originalist approach led her to dissent in the 2019 case Kanter v. Barr in which the Seventh Circuit upheld federal and state laws that prohibit gun ownership for people convicted of felonies, even nonviolent felonies. In her dissent, Barrett reviewed Founding-era legislation and commentary, concluding that a legislature can prohibit violent felons from possessing guns without violating the Second Amendment, but a blanket dispossession of all felons goes too far.

Perhaps Barrett’s most influential ruling to date came in Doe v. Purdue University (2019), in which she led a decision reinstating a lawsuit against Purdue University by a male student who had been suspended for committing sexual violence against a female student. The student, known as John Doe, alleged that Purdue’s dean of students had found him guilty without ever speaking to his accuser and that a university review committee also blindly accepted the accuser’s account without hearing from John or allowing him to present any evidence.

Writing for a unanimous panel of three judges —all women—Barrett wrote that Doe had stated a plausible claim that he had been “denied an educational benefit on the basis of his sex” in violation of Title IX. The court also held that Doe’s allegations stated a claim for violation of due process under the Fourteenth Amendment.

“Purdue’s process,” Barrett wrote, “fell short of what even a high school must provide to a student facing a days-long suspension.” The Purdue decision, already widely cited in other circuits, shows a clear-eyed skepticism about lopsided college disciplinary procedures that have been criticized by experts on the right and left, including Ginsburg.

With an election just weeks away, the timing of Barrett’s nomination has predictably provoked controversy. But today’s political squabbles should not overshadow the intellect and judicial temperament that make her a superb choice for the high court.

Adam Freedman is the author of “A Less Perfect Union: The Case for States’ Rights.” Adapted from City Journal.

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