Judge Amy Coney Barrett’s nomination was always supposed to be a threat.
Trump’s celebration at the Rose Garden intended to wound a country grieving both the death of a national hero and the devastation to ensue in her wake. He did so knowing that from her deathbed, Justice Ruth Bader Ginsburg conveyed her “most fervent wish” for leaders to listen to public will, rather than rush to appoint her replacement. Before her body was even in the ground, Republicans moved to replace Ginsburg with a justice who is the antithesis of everything that made Ginsburg remarkable — a woman who will strip every other woman in this country of their rights. Without shame — or masks — they basked in the cruelty of the moment.
Justice Ginsburg placed immense faith in institutions not created with people like her in mind. Her brilliant reimagining of the Constitution — particularly the Fourteenth Amendment — elevated American women from second-class citizens into autonomous human beings with legal rights. She devoted her career to the notion that this country’s promise of liberty and justice would someday prevail. And even in her final words, she implored the America she left behind to reconsider what it had become.
Justice Ginsburg was far from perfect — her disappointing votes on Indigenous sovereignty and remarks on Colin Kaepernick’s protests, for instance, have warranted necessary criticism. But despite her shortcomings, Ginsburg dedicated her life to using the power of law to uplift those most marginalized and fight for those most vulnerable. Amy Coney Barrett will destroy her legacy.
Mere hours after Justice Ginsburg’s death, Mitch McConnell made clear that sacrificing public opinion was a small price to pay to cement illegitimate right-wing rule for generations. This is precisely what Senate Republicans hope to accomplish by installing Judge Barrett, a brazen conservative ideologue eager to destroy the institutions Justice Ginsburg trusted. Beginning confirmation hearings less than a month before the 2020 presidential election, after thousands of citizens have already cast their ballots, will delegitimize judicial independence and destabilize American democracy.
Barrett could stop this, but she does not seem to care.
Barrett’s record indicates that her tenure would be catastrophic for voting rights, climate change, LGBTQ+ equality and so many other issues at the heart of what America is and must become. But given Justice Ginsburg’s legacy as a trailblazer for women’s rights, Barrett’s eagerness to reverse decades of feminist victories is most heartbreaking. In 2006, she signed a newspaper advertisement sponsored by the St. Joseph County Right to Life, which called Roe v. Wade “barbaric.” As a professor at Notre Dame, she belonged to an anti-abortion club, University Faculty for Life, which asserted that the law should regard fetuses as full human beings. She has signaled that she will gut insurance coverage essential to women’s health. And she has made clear that she will impose her personal fanatacism about abortion, contraception and health care on all American women.
The idea that Amy Coney-Barrett is the natural guarantor of Justice Ginsburg’s legacy, simply because she is a woman, is a cruel perversion of Ginsburg’s memory. Ginsburg made a male-dominated legal world understand why the Constitution must protect rights central to women’s liberation and self-determination; Barrett believes women are intrinsically subservient to their husbands. To imply the two are interchangeable solely on the basis of sex, and to laud Barrett as a victory for women, is not just insulting — it is misogynistic. Republicans have exploited Barrett’s gender to silence those who fear the devastation wrought by her confirmation.
Many conservative women bemoan that they have no place in modern feminism — their “conservative values” and anti-abortion stances make them feel as though they don’t belong. Barrett’s nomination shows exactly why that must be. Feminists embracing white conservative women like Barrett as a triumph of any kind would necessarily come at the expense of marginalized women and queer people directly harmed by their extremism.
There is nothing feminist about ignoring the diversity of women’s experiences and the imperative of reproductive choice. There is nothing feminist about placing fringe religious interpretation over the separation of church and state. There is nothing feminist about women who travel paths paved by revolutionaries, only to ensure no others reach such heights. One need not be a man to be an enemy towards women.
The Court was already precarious for women before Ginsburg’s death. In order for any liberal consensus to have the majority, Chief Justice John Roberts — who became the “swing vote” after Justice Anthony Kennedy retired — had to join with the four-justice liberal bloc. Such instances already represented rare, limited victories. This summer, Chief Roberts sided with the liberals on the bench in June Medical Services v. Russo, which found that targeted restrictions on abortion providers in Louisiana were unconstitutional.
Had Roberts abandoned stare decisis by ignoring precedent, following the other conservative justices, Louisiana would have been left with just one abortion provider. Still, Roberts’ opinion was tentative, signaling he would be amenable to state restrictions that did not target abortion providers in the exact same way deemed unconstitutional in both June Medical Services and Whole Woman’s Health v. Hellerstedt (2016). If a radical conservative judge like Barrett replaces Justice Ginsburg, the Court would not show even this much restraint.
A Ginsburg-less Supreme Court may well overturn Roe v. Wade. Such a decision could immediately trigger abortion bans in up to 24 states hostile to reproductive rights, transforming nearly half of the country into “abortion deserts” overnight.
But even if the Court does not formally reverse precedent, they can strike down protection after protection until Roe no longer exists in practice for the vast majority of Americans seeking care. This process has already begun. States across the country have passed a wide array of legislation making reproductive health care inequitable and unaffordable, even as it remains legal.
This conservative strategy aims to impose prohibitive barriers restricting abortion access, such as financial burdens and parental consent laws. Just this year, Florida passed a parental consent law, Tennessee passed a new six-week ban, and eight states tried to claim abortion clinics are “nonessential businesses” that should close throughout the pandemic. These laws disproportionately affect women of color, low-income women, queer people and those in states that have already decimated reproductive rights. It would leave only the most privileged Americans with the ability to control their own bodies. A toothless, hollowed Roe would mean little.
If Democrats win the presidency and the Senate in November, they must implement immediate institutional reforms that restrict Barrett’s ability to strip women of their rights. Biden has proposed codifying Roe v. Wade as federal law — but Obama’s 2008 campaign also pledged to pass the Freedom of Choice Act and codify Roe as one of his first acts as President, then declared it was not his “highest legislative priority” once in office.
Moreover, even with such a law, states primarily control abortion availability in America, not the federal government; the Hyde Amendment has blocked federal funds like Medicaid from even paying for these services and would certainly prevent the federal government from offering direct abortion care nationwide. And if states flagrantly violate federal law, a challenge would likely end up in front of the very Court that created such conditions in the first place.
Instead, Democrats’ fight to protect women’s rights must be as bold and unrepentant as the Republicans have been in eroding them. They cannot continue to cling to political norms while the opposition tears down any semblance of law and justice that remains, and while countless lives hang in the balance. Changing law on a national scale, absent a politically-impossible constitutional amendment, will not be enough. Eliminating the filibuster and aggressively packing the court with justices dedicated to equal protection under the law would reverse the effects of Republicans stealing both Justice Scalia and Justice Ginsburg’s seats, and secure the rights placed in jeopardy by Republican hypocrisy.
These steps would not cheapen American institutions — Republicans did that when they spit on Justice Ginsburg’s dying wish. They are the only way our institutions might survive.
SHANNON SOMMERS is a junior in Trumbull College. Contact her at firstname.lastname@example.org.