Textualism, Equal Rights, and the Political Paradox of Amy Coney Barrett
Updated: Oct 8, 2020
Judge Amy Coney Barrett is set to begin her Supreme Court confirmation hearings on October 12th. A highly esteemed law professor from Notre Dame, Barrett has been lauded by conservatives, who also commend the President’s deliberate choice to nominate a woman in Ruth Bader Ginsburg’s memory. But Barrett herself is hardly a champion of women’s rights.
Perhaps the most crucial part of Barrett’s judicial identity is her commitment to "textualism". In the image of former mentor Justice Antonin Scalia, Barrett has promised to interpret the constitution as intended by those who wrote it, regardless of her personal politics. However, given that the Constitution emanates from on a society in which women were not deemed autonomous, it is impossible for equal rights’ supporters not to feel the deep tension that exists between being a textualist and a feminist. No explicit protections for women exist in the constitution.
Neither the word “sex” nor “woman” appears in the constitution - revealing the limits of of the Founders’ failure to view women as equal citizens. Written by and for White men, the Constitution has undoubtedly done its job - allocating large amounts of power to a small number of the founders’ peers.
Photos: ACLU, Virginia / Kati Hornung, VAratifyERA.org / Unsplash
Many legal protections for women have evolved out of the Constitution’s equality principles, and have been established out of a philosophy that contradicts Barrett’s: that the document should be interpreted as a living document that can be stretched and molded to fit an evolving society.
In 1928, legendary activists Alice Paul and Crystal Eastman proposed the Equal Rights Amendment in order to explicitly guarantee equal protection to women under the constitution. In January of this year, almost 100 years later, Virginia became the 38th state to ratify the amendment. The 38 state threshold needed to ratify a constitutional amendment was crossed, but only after the ratification timeline had lapsed, leaving it up to Congress, the courts, and the American people to decide the future of the ERA (1).
Until the ERA is passed, the Constitution, under Barrett’s originalist philosophy, cannot uphold the rights that we have come to view as intrinsic for women.
Textualism is a disguise for conservatism in a realm that is not intended to be warped by politics: the Judicial Branch of government. This philosophy has motivated Barrett’s voting record as a Judge on the Chicago Federal Appeals Court - which is uniformly against reproductive rights. Further, Barrett firmly holds that the Affordable Care Act’s individual mandate is unconstitutional according to the founder’s intent and is posed to vote for its repeal in November. The ACA provides healthcare to over 20 millions Americans and prohibits insurance companies from denying coverage to those with preexisting conditions - which include pregnancy (2).
If confirmed, President Trump’s nominee to replace Justice Ruth Bader Ginsburg is sure to alter the makeup of the court for decades to come, further politicizing its already conservative leanings - all at the expense of women and families.