If she lives as long as Ruth Bader Ginsburg, she could still be on the court in 2059. What would she do?
Sitting before the 22 members of the Senate Judiciary Committee on Tuesday — some behind a mask, others behind a computer screen — Judge Amy Coney Barrett took pains to stress that she was neither a pundit nor a partisan. “Judges cannot just wake up one day and say, ‘I have an agenda: I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” she said. “I have an agenda to stick to the rule of law and decide cases as they come.” It was a familiar rendering of the judge as disinterested arbiter of the law, but, as my colleague Nicholas Fandos writes, one that bears scant relation to the reality of the Supreme Court. What does her record tell us about how a Justice Barrett might rule, and how would her tenure shape the country’s future? Here’s what people are saying. Like her mentor Justice Antonin Scalia, Judge Barrett is an adherent of so-called public-meaning originalism, a jurisprudential theory by which judges claim to interpret the Constitution as people understood it at the time of its ratification. Conservatives have championed originalism in recent decades as a doctrine of judicial restraint, but it has counterrevolutionary implications: As Judge Barrett herself wrote in 2016, “Some decisions thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc.” The tension between Judge Barrett’s ostensibly conservative legal philosophy and the radical decisions it might compel — reversing Brown v. Board of Education, for example — is a subject she has explored at length in her legal writings. Keith E. Whittington, a professor of politics at Princeton and an expert on originalism, sums up her position in The Times: “Even an originalist judge, she believes, should frequently defer to what might be flawed precedents. That is true for what are sometimes called ‘superprecedents’ like the unconstitutionality of racial segregation and the constitutionality of paper money, but it is also true for many more ordinary precedents that might have been badly reasoned but that are now broadly accepted.” Because she favors what she has called a “weak presumption of stare decisis” — the principle of deferring to precedent — Mr. Whittington believes Judge Barrett would be a less staunch originalist than Justice Clarence Thomas, whose readiness to overturn longstanding rulings was considered extreme even by Justice Scalia. But in the main, Judge Barrett would still be one of the court’s more reliable right-wing justices, according to my colleague Adam Liptak. “She has compiled an almost uniformly conservative voting record in cases touching on abortion, gun rights, discrimination and immigration,” he writes. “If she is confirmed, she would move the court slightly but firmly to the right, making compromise less likely.” Abortion rights are one reason Judge Barrett’s views about precedent have featured so prominently in her confirmation process. Where she stands on the issue has long been plain: In 2006, she signed a newspaper ad opposing “abortion on demand” and defending “the right to life from fertilization to natural death.” While Judge Barrett has vowed to set aside her personal views on the bench, neither her supporters nor her opponents have much reason to doubt that her appointment would threaten access to abortions, which under the Trump administration have become harder to get in many places than at any time since the procedure was legalized nearly 50 years ago. In her writings, she has pointed to the legacy of Roe v. Wade as evidence of a “public rejection” of stare decisis and cited legal experts who do not count Roe v. Wade among untouchable Supreme Court decisions. Yet as Dahlia Lithwick points out in Slate, the Supreme Court need not overturn Roe v.
