Supreme Court nominee Amy Coney Barrett told the country that her approach to the law mirrored that of late conservative legal idol Justice Antonin Scalia, but she had a different message at her confirmation hearing Tuesday when confronted with his past opinions on abortion, health care and more.
“If I were confirmed, you would be getting Justice Barrett, not Justice Scalia,” she told the Senate Judiciary Committee under questioning from California Democrat Dianne Feinstein about LGBT rights. “So I don’t think that anybody should assume that just because Justice Scalia decided a certain way that I would too.”
Barrett also did not detail how or in what cases that shared legal approach would lead to a different conclusion than Scalia’s, in exchanges that showed how Supreme Court nominees can avoid saying much and still sail through the Senate’s confirmation process.
President Donald Trump’s appointee clerked for Scalia, and said at the Rose Garden ceremony announcing her pick that his judicial philosophy was hers too. It is centered on the straightforward idea that “a judge must apply the law as written,” though she warned the committee that the approach is “not a mechanical exercise.”
But over and over on major topics, Barrett told the committee that different judges can use the approach and arrive at different conclusions. Democrats weren’t buying it, while Republicans gave no whiff that they doubted the solidly conservative pick.
Supreme Court nominees traditionally don’t detail how they would rule on an issue or give a thumbs-up or thumbs-down on the court’s prior rulings in an area where there is active litigation. But rarely does a nominee’s past writings, along with those of her judicial mentor, align so directly with the court’s docket.
And the issues Tuesday went right to the heart of differences between the two parties on major social and political issues — all of which Scalia had opined about — just three weeks before the 2020 election.
Feinstein asked Barrett whether she agreed with a Scalia dissent that the 1973 decision in Roe v. Wade that established a constitutional right to an abortion was wrongly decided and should be overruled. Barrett said there is active litigation in that area.
“It would actually be wrong and a violation of the canons for me to do that as a sitting judge,” Barrett said. “So if I express a view on a precedent one way or another, whether I say I love it or hate it, it signals to litigants that I might tilt one way or another in a pending case.”
Ditto on Scalia’s dissent in a 2015 decision that legalized same-sex marriage nationwide. “I'm sorry to not be able to embrace or disavow Justice Scalia’s position but I really can’t do that on any point of law,” Barrett said.
Feinstein said Barrett’s answer on abortion makes it difficult for her and for other women also on this committee. “Because this is a very important case, and it affects a lot of people, millions and millions of women. And you could be a very important vote,” the California Democrat said.
Republicans repeatedly balked at the notion that Barrett’s future decisions were as predictable as Democrats were making it out to be.
“I think this one-way attribution, that you must just be, ‘Whatever Justice Scalia did, you would automatically do,’ I have to say, frankly, I think is a little bit demeaning,” said Missouri Sen. Josh Hawley, a former Supreme Court clerk.
Hawley, this summer after the Supreme Court struck down a Louisiana law regulating abortion clinics, said on the Senate floor that he would only vote this year for Supreme Court nominees “who understand and acknowledge that Roe was wrongly decided.”
Texas Republican Sen. John Cornyn pointed to three examples when expectations of a Supreme Court nominee did not pan out when they reached the high court. Justice Harry Blackmun, a Nixon appointee, wrote Roe v. Wade. Justice Neil M. Gorsuch, a Trump appointee, declined at his hearing to commit to prejudge LGBT issues and then wrote the decision liberals cheered to extend workplace discrimination law.
And Cornyn pointed to Chief Justice John G. Roberts Jr., a George W. Bush appointee, who was the deciding vote in a 2012 decision that upheld the constitutionality of the 2010 health care law known as Obamacare. Roberts’ legal reasoning was widely panned in conservative circles.
“I would just say all of these predictions about how judges under our independent judiciary will make decisions are just pure speculation,” Cornyn said. “But I think they’re worse than speculation, I think they’re propaganda to make a political point.”
Health care on the docket
Yet Barrett, when she was a Notre Dame law professor before she was appointed to a federal appeals court, was among those who wrote and spoke critically of the legal reasoning behind the Supreme Court’s two decisions to uphold the 2010 health care law.
Democratic senators repeatedly brought up the issue, since Republicans plan to confirm Barrett to the bench in time for a Nov. 10 oral argument in a case where the Trump administration and Republican-led states are asking the court to invalidate one part of the law and use that to wipe out the entire thing.
Minnesota Democratic Sen. Amy Klobuchar brought up Barrett’s interview from the second Obamacare case in 2015 where Barrett said she agreed that Scalia, in a dissent, had the better legal argument.
“So then would you have ruled the same way and voted with Justice Scalia?” Klobuchar asked. Barrett replied that it would be difficult for her to say.
“Having been a judge for three years, I can say, I appreciate greatly the distinctions between academic writing or academic speaking, and judicial decision making, such that a judge might look at an academic and say, ‘Easy for you to say,’” Barrett said.
“Because you’re not on a multi-member court. You’re not constrained by stare decisis. You don’t have real parties in front of you consulting with litigants consulting with their clerks,” Barrett added. “It's just a different process.”
Klobuchar responded that Barrett had been really clear about whose side she was on. “You were on Scalia’s side, and of course, that was a side to not uphold the Affordable Care Act, which would have kicked millions of people off of their health care, in effect,” Klobuchar said.
Barrett expressed her originalist judicial approach as interpreting the Constitution as a law, interpreting its text as text, understanding it to have the meaning that it had at the time people ratified it. “That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it,” Barrett said.
And Barrett said she would follow the law as Congress enacted it, and several times said she “would not be coming in with any agenda,” including after questions about Roe.
“I would do equal justice under the law for all and not try to thwart or, or disrupt in any way the policy choices that you and your colleagues have adopted,” Barrett said.
Even that language echoed Scalia. “This is almost verbatim the answer Scalia gave on Roe (no agenda),” Mary Ziegler, a law professor at Florida State University who has published two books on the history of abortion in America, tweeted.
“He called for the overturning of Roe in the first case he was part of thereafter,” Ziegler said.