It’s been more than a quarter-century since Justice Clarence Thomas was confirmed to serve on the U.S. Supreme Court. Sadly, for Thomas and the country the incident for which he remains best known – especially given his extremely infrequent contributions to the Court’s jurisprudence in the intervening 27 years – is his contentious confirmation hearing. Those proceedings shined for one of the first times a national spotlight on the issue of sexual harassment.
After nearly three decades, we tend to forget that Thomas was selected to replace the only other African-American to ever serve on the Court: a man who was an iconic champion of civil rights, Justice Thurgood Marshall. It remains one of the great stains on the presidency of George Herbert Walker Bush that he took such a cynical action – elevating a deeply reactionary and ill-prepared individual to replace such an historic figure as Marshall. Despite Bush’s absurd statement at the time that Thomas “best qualified” person to fill the slot, Thomas has turned out to be the anti-Marshall – a justice who given a free rein, would repeal nearly all of the constitutional progress of the 20th century.
Unfortunately, it appears that we are on the cusp of another such event with President Donald Trump’s nomination of Judge Amy Coney Barrett to take the seat of the deceased Justice Ruth Bader Ginsburg. For as Thomas was to Marshall, so Barrett is to Ginsburg. On vitally important issue after vitally important issue, she is the anti-RBG – a judge who would roll back decades of progress in human freedom and equality in service of a dark, authoritarian and at times, downright bizarre worldview.
As Slate.com columnist Mark Joseph Stern put it in a recent column:
[Justice Ginsburg] viewed the Bill of Rights and civil rights acts as generous guarantees of human dignity that must be read expansively to achieve their purpose. By contrast, Barrett’s view of the law is fundamentally cruel. During her three years on the 7th Circuit Court of Appeals, Barrett has either written or joined a remarkable number of opinions that harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.”
A recent and lengthy report from expert Supreme Court watchers at the Alliance for Justice explains this tragic situation in painful detail. Consider some of the following stances Barrett has taken during her brief tenure as appellate judge:
On respect for established precedent: She has a long record of questioning the fundamental judicial principle known as stare decisis – the idea that judges should faithfully apply established precedent except in extraordinary circumstances. This is the principle that Chief Justice John Roberts relied upon earlier this year in striking down a Louisiana anti-abortion law that was essentially identical to one the Court had invalidated just a couple of years before.
On reproductive freedom: It is all but certain that Barrett would provide the final necessary vote on the court to overturn Roe v. Wade and compel women to carry unwanted pregnancies to term if they happen to be unlucky enough to reside in a state with anti-abortion laws. She has already voted to uphold new and burdensome restrictions on abortion rights in cases considering laws from Indiana – votes that even went contrary to the positions of other conservative judges appointed by Presidents Ronald Reagan, George H.W. Bush and Trump.
On access to health care: Barrett is on record as saying the federal courts should strike down the Affordable Care Act as unconstitutional. Indeed, in 2017, while still a law professor, Barrett wrote a law journal article in which she specifically criticized Chief Justice Roberts for upholding the constitutionality of the law.
On civil rights: In her brief stint on the Seventh Circuit, Barrett has already voted to dismantle core protections:
- She upheld an employer’s “separate but equal” policy that segregated employees – in this case, workers at an auto parts store – by race;
- struck down the discipline meted out to a university student for having committed a sexual assault, based on the male student’s claim that he was the victim of sex discrimination;
- questioned the role of the courts in protecting LGBTQ equality and even the ruling that legalized same-sex marriage; and
- helped limit the scope of the Age Discrimination in Employment Act by narrowly construing the law in such way that counsel for AARP decried as taking us “back to 1967.”
Barrett has taken similarly backward-looking stances, writing or joining opinions in numerous other cases:
- limiting the rights of consumers to obtain compensation from businesses that ripped them off;
- disadvantaging immigrants and promote deportations;
- limiting even modest restrictions on gun ownership; and
- restricting the rights of criminal defendants.
In short, the contrast between Barrett and the woman she would replace could not be sharper. Whereas Ginsburg was a courageous visionary committed to advancing the causes of human freedom and equality, Barrett is a skillful apologist for reaction and preserving the perks of the privileged and powerful. It will be one of the great tragedies of our time if Trump and Senate Majority Leader Mitch McConnell succeed in effecting such a radical switch under such unprecedented circumstances.