In two cases before the Supreme Court—on a concealed-carry law in New York and abortion access in Mississippi—Amy Coney Barrett has already exerted influence just by her presence, Margaret Talbot writes.
At Barrett’s confirmation hearing for the U.S. Court of Appeals for the Seventh Circuit, in 2017, and again three years later, when she was nominated to the Supreme Court, she declined to say whether she believes that Roe was a mistake. At the 2020 hearings, when Senator Dianne Feinstein pressed her to discuss Roe, Barrett refused. “It would actually be wrong and a violation of the canons for me to do that as a sitting judge,” she chided.
Originalists contend that their forensic examinations of the Constitution and other foundational texts constrain them from imposing their preferences. A true originalist, it is said, sometimes arrives at a conclusion whose results she personally doesn’t like. Scalia was a blustery, patriotic traditionalist who openly disdained what he called “sandal-wearing, bearded weirdos who go around burning flags.
Dobbs v. Jackson Women’s Health probably wouldn’t have made it to the Court in its present form if Barrett hadn’t been there. When Mississippi first petitioned the Court, in June, 2020, it noted that “the questions presented in this petition do not require the Court to overturn Roe or Casey.” But, as Ruth Marcus pointed out in the Washington, “with the case accepted for review, Ginsburg dead and Barrett in her seat, Mississippi decided to go for broke.
That “possibly experienced at first as coercive” is a typical Vermeule flourish—an airy dismissal of fears that his preferred regime would be dystopian for citizens of a pluralistic society who share neither his moral viewpoint nor his orientation toward authority.
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