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On December 1st, the Supreme Court had its day of oral argument in a landmark abortion case, Dobbs v. Jackson Womens Health Organization, brought by the State of Mississippi. It was the first case that the Court had taken in thirty years in which the petitioners were explicitly asking the Justices to overturn Roe v. Wade, the 1973 decision legalizing abortion, and its successor, Planned Parenthoodv. Casey, which affirmed that decision in 1992. If anyone needed a reminder that, whatever the Justices decide in Dobbs, it will not reconcile the American divide over abortion, the chaotic scene outside the Court made it clear. At the base of the marble steps, reproductive-rights supporters held a large rally in which they characterized abortion as a human rightand an act of health care. Pramila Jayapal, a Democratic U.S. representative from Washington State, described herself as one of the one in four women in America who have had an abortion, adding, Terminating my pregnancy was not an easy choice, but it was my choice. Jayapal could barely be heard, though, over the anti-abortion protesters who had also gathered, in even greater numbers. The day was sunny and mild, and though some of these demonstrators offered the usual angry admonishmentsGod is going to punish you, murderer! a man with a megaphone declaimedmost members of the anti-abortion contingent seemed buoyant. Busloads of students from Liberty University, an evangelical college in Lynchburg, Virginia, snapped selfies in their matching red-white-and-blue jackets. Penny Nance, the head of the conservative group Concerned Women for America, exclaimed, This is our moment! This is why weve marched all these years!
A major reason for Nances optimism was the presence on the bench of Amy Coney Barrett, the former Notre Dame law professor and federal-court judge whom President Donald Trump had picked to replace Ruth Bader Ginsburg, who died on September 18, 2020. With the help of Mitch McConnell, the Senate Majority Leader, Trump had accelerated Barretts nomination process, and the Senate confirmed her just a week before the 2020 Presidential election. As a candidate in the 2016 election, Trump had vowed to appoint Justices who would overturn Roe, and as President he had made it a priority to stock the judiciary with conservative judgesespecially younger ones. According to an analysis by the law professors David Fontana, of the George Washington University, and Micah Schwartzman, of the University of Virginia, Trumps nominees to the federal courts of appealsbodies that, like the Supreme Court, confer lifetime tenurewere the youngest of any Presidents since at least the beginning of the 20th century. Trump made three Supreme Court appointments, and Neil Gorsuch (forty-nine when confirmed) and Brett Kavanaugh (fifty-three) were the youngest of the nine Justices until Barrett was sworn in, at the age of forty-eight. Her arrival gave the conservative wing of the Court a 63 supermajorityan imbalance that wont be altered by the recent news that one of the three liberal Justices, Stephen Breyer, is retiring.
Barrett has a hard-to-rattle temperament. A fitness enthusiast seemingly blessed with superhuman energy, she is rearing seven children with her husband, Jesse Barrett, a former prosecutor now in private practice. At her confirmation hearings, she dressed with self-assurancea fitted magenta dress; a ladylike skirted suit in unexpected shades of purpleand projected an air of decorous, almost serene diligence. Despite her pro-forma circumspection, her answers on issues from guns to climate change left little doubt that she would feel at home on a Court that is more conservative than its been in decades. Yet she also represented a major shift. Daniel Bennett, a professor at John Brown University, a Christian college in Arkansas, who studies the intersection of faith and politics, told me that Barrett is more embedded in the conservative Christian legal movement than any Justice weve ever had. Outside the Court, Nance emphasized this kinship, referring to Barrett as Sister Amy, on the inside.
In recent years, conservatives have been intent on installing judges who will not disappoint by becoming more centrist over time. Sandra Day OConnor and Anthony Kennedy sided with liberal Justices in a few notable cases, including ones that allowed same-sex marriage and upheld Roe. David Souter, who had become a federal judge just months before President George H.W. Bush nominated him to the Court, in 1990, moved leftward enough that No More Souters became a conservative slogan. A decade ago, Chief Justice John Roberts committed the unpardonable sin of providing a critical vote to keep the Affordable Care Act in place. In 2020, the seemingly stalwart Gorsuch delivered a blow, writing the majority opinion in a case which held that civil-rights legislation protected gay and transgender workers from discrimination. On the Senate floor, Josh Hawley, the Missouri Republican who later attempted to discredit the results of the 2020 Presidential election, declared that Gorsuchs opinion marked the end of the conservative legal project as we know itthe originalist jurisprudence, prominent since the nineteen-eighties, that claims to be guided by the textual intent of the Founding Fathers. It was time, Hawley said, for religious conservatives to take the lead. Four months later, that new era unofficially began, when Barrett joined the Court.
For decades, leading members of the Federalist Society and other conservative legal associations have vetted potential appellate judges and Justices and provided recommendations to Republican Presidents. The Federalist Society has traditionally showcased judges with records of high academic distinction, often at lite schools; service in Republican Administrations; originalist loyalties; and a record of decisions on the side of deregulation and corporations. Barrett hadnt served in an Administration, and, unlike the other current Justices, she hadnt attended an Ivy League law school. She went to Notre Dame, and returned there to teach. These divergences, though, ended up becoming points in her favorespecially at a time when religious activists were playing a more influential role in the conservative legal movement. Notre Dame, which is just outside South Bend, Indiana, is a Catholic institution in a deeply red state, and its one of the relatively few well-respected law schools where progressives do not abound. Barretts grounding in conservative Catholicism, and even her large family, began to seem like qualifications, too. Andrew Lewis, a University of Cincinnati political scientist who studies faith-based advocacy, told me that religious conservatives often used to feel looked down upon by some of the original Federalist Society members. But, he went on, they have increasingly gained power, and their concerns have become more central to the project.
To some of Barretts champions, her life story also offered a retort to the kind of liberal feminism they abhorred. When I asked Nance what she most admired about Barrett, she replied, in an e-mail, Amy Coney Barrett is a brilliant, accomplished jurist who also happens to be a mother of 7 serving on the highest court in the land. She decimates the argument that women cant do both, or that women need abortion to live their best lives. (Barrett declined my request for an interview.)
In public appearances before her nomination, Barrett was pleasant, non-ideological, and disciplined to the point of blandness. Yet her background and her demeanor suggested to social conservatives that, if placed on the Court, she would deliver what they wanted, expanding gun rights and religious liberties, and dumping Roe. In a recent memoir, Trumps former chief of staff Mark Meadows, a hard-line conservative, unflatteringly describes Brett Kavanaugh as an establishment-friendly nominee who had served in the George W. Bush White House. Meadows writes that Trump, who had almost nominated Barrett in 2018, was exasperated by Kavanaughs performance at his confirmation hearingsnot because he had to fend off sexual-assault accusations but because the sometimes tearful nominee had appeared weak. Picking a conventional Beltway guy had led to disappointment, and the President was determined not to make the same mistake twice. According to the memoir, Barrett didnt miss a beat during her first meeting with Trump, assuring him that she would follow the Constitution and that she could handle attacks from liberals. Meadows was struck by her commitment to her faith and to conservative ideals. When she made a pre-confirmation tour of Senate offices, he trusted her to do so without the aid of a sherpatypically a former senator who helps break the ice.
In the religious magazine First Things, Patrick Deneen, a colleague of Barretts at Notre Dame, wrote that she had developed a useful kind of cultural insulation, or armor. He extolled her upbringing in Louisiana (the state with the highest percentage of native-born residents) and her immersion in the Catholic community in and around South Bendsometimes known, he said, as Catholic Disneyland. There, a minivan full of siblings was just a regular family. With Barrett, the nation was getting the first justice to receive her law degree from a Catholic university, and someone who had spent almost her entire life in the flyover places of America where gentry liberalism is not the dominant fashion. Barrett might acclimate to the cosmopolitan secularism of Washington, D.C., Deneen said, but there is hope her entire life story to date will make her resistant to that fate.
In public, most conservatives deride the notion that a jurists cultural background might influence her decisions, let alone make her a better judge. At Sonia Sotomayors confirmation hearings, in 2009, Republican senators denounced her for having argued, in a speech, that a wise Latina might fruitfully draw on her life experiencein her case, as a Puerto Rican New Yorkerin her jurisprudence. But many conservatives were eager to spotlight Barretts identity, because it suggested an imperviousness to public-opinion polls and the disapproval of coastal lites. Nance told me that, on a Women for Amy bus tour that she had organized to generate enthusiasm for Barretts confirmation, older women in particular would come up to us with tears in their eyes saying that they have been waiting their whole lives for a conservative woman to be appointed to the court. (OConnor, Ronald Reagans appointee, who helped forge the compromise in Casey that preserved abortion rights, apparently didnt count.)
On the day of oral argument in Dobbsv. Jackson Womens Health, loudspeakers outside the Court broadcast the proceedings, and some people in the crowd surged closer to listen. (Because of pandemic restrictions, the courtroom was closed to the public.) Breyer, Sotomayor, and Elena Kagan, the three liberal Justices, expressed concern that overturning the long-standing precedents of Roe and Casey could severely undermine the principle of stare decisisadherence to past rulings on which citizens have come to relyand make it look as though the Court were reversing course because thered been a change in personnel. Sotomayor was especially blunt: Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts?
Veteran observers of the Court often remind the rest of us not to leap to conclusions on the basis of oral argumentsthe Justices might just be testing out ideas. But many journalists and legal academics saw this session as easier to parse than others. The conservative wingRoberts, Barrett, Gorsuch, Kavanaugh, Samuel Alito, and Clarence Thomasseemed inclined to uphold Mississippis ban on virtually all abortions after fifteen weeks of pregnancy, undoing Roes guarantee of legal abortion up to the point of fetal viability. (Doctors currently consider a fetus viable at about twenty-four weeks.) The remaining question was whether a majority of the conservatives would accept Mississippis request to throw out Roe and Casey altogether. Alito, Thomas, and Gorsuch appeared ready to do so. Kavanaughwho had been less of a sure bet going inalso seemed to be on board, noting that previous Justices had overturned precedents after concluding that their predecessors had been wrong; he invoked Plessy v. Ferguson and other infamous decisions. Roberts seemed to be looking, as he often does, for a narrower rulinga way to find the Mississippi law constitutional without obliterating Roe.
When it was Barretts turn, she paid respect to the benefits of stare decisis, but also emphasized that its not an inexorable command, and that there are some circumstances in which overruling is possible. She then proposed that the Courts opinion in Casey had relied on a different conception of stare decisis insofar as it very explicitly took into account public reaction. The implication was that the Justices in 1992 had been too attuned to momentary political fluctuations. She wondered aloud if the Court, going forward, should minimize that factor. As Mary Ziegler, a law professor at Florida State University and an expert on abortion law, told me later, Barrett didnt seem as obviously ready to get rid of Roe as some of the others.... But if you were betting, and oral argument was the evidence you had, it would sure look like they had the votes to overturn it.
Barrett devoted more of her time to a line of questioning that was not especially jurisprudentialand not one which any other Justice likely would have pursued. Speaking politely, in her youthful-sounding voice, she began asking about safe haven laws, which allow a person who has just given birth to leave the babyanonymously, with no questions askedat a fire station or some other designated spot. States began passing such legislation in 1999. (Some legislators found the idea appealing partly because it was about saving babies and partly becauseunlike programs that subsidize child care or help beleaguered parents in many other wayssafe havens generally cost little to set up.) Barrett seemed to be implying that such laws posed a feasible alternative to abortion. In a colloquy with Julie Rikelman, who represented Jackson Womens Health Organizationthe only abortion clinic in MississippiBarrett noted that safe-haven laws existed in all fifty states, adding, Both Roe and Casey emphasize the burdens of parenting, and, insofar as you... focus on the ways in which forced parenting, forced motherhood, would hinder womens access to the workplace and to equal opportunities, its also focussed on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why dont the safe-haven laws take care of that problem? Pregnancy itself, Barrett went on, might impose a temporary burden on the mother, but if you could relinquish the baby you could avoid the burden of parenthood. And, in a peculiar sideswipe, she described pregnancy as an infringement on bodily autonomy... like vaccines, a comment that seemingly built on anti-vaxxers appropriation of pro-choice rhetoric to make a novel suggestion: that being required by your employer to get a shot against a deadly communicable disease is somehow equivalent to being forced to give birth.
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