With the nomination of Amy Coney Barrett, we are on the verge of living under a 6-3 court that has marched steadily and radically rightward since the 1970s and will remain, under the leadership of Chief Justice John Roberts, the most conservative court since that time. One commentator describes Brett Kavanaugh and Neil Gorsuch, Donald Trump’s first two appointees, as representing the center of the court if Barrett is seated.
Let that sink in.
When Mitch McConnell refused to consider Merrick Garland, President Barack Obama’s selection to replace Justice Antonin Scalia in 2016, he established a new precedent he ought to live with now. If Trump wins reelection in November, he can fill the seat without tainting his pick. But the illegitimacy will stick permanently to Barrett if she’s confirmed now, through this deeply cynical, political power grab.
Let’s reflect on what we will lose when this happens.
Ruth Bader Ginsburg started her career in the 1950s when discrimination on the basis of sex was culturally dominant and enshrined in law. Her education and career bear the marks of that discrimination. But RBG imagined a world in which women would be judged before the law as equal to men — a view some conservatives today consider anathema — and she used the law to make that world a reality.
As the court swung to the right, she became known for her dissents. She stood against the majority in Bush v. Gore in 2000 when the court halted the recount in Florida, awarding the presidency to George W. Bush. She dissented in Shelby County v. Holder in 2013, when the Roberts Court gutted the Voting Rights Act of 1965. And again in 2014, when the court ruled to allow Hobby Lobby to discriminate against employees who wanted their health care to cover contraceptives. Although her dissents did not persuade the majority to side with her in those cases, she used her voice to speak to the world feminism insists on: a world where education, employment, housing, health care, civil rights and environmental justice represent the common good. Barrett will join the conservative block RBG opposed.
Replacing Ruth Bader Ginsburg with a woman who is anti-feminist is just as cynical as replacing civil rights titan Thurgood Marshall with a Clarence Thomas, a Black nominee who was avowedly hostile to affirmative action. Feminism is a liberatory movement comprised of people of all genders. Women who use their power to harm other women by reducing their rights and freedom are anti-feminist. They often rise to power within conservative movements, just as Phyllis Schlafly did. Or consider Betsy DeVos, Ivanka Trump, Kellyanne Conway and Sarah Huckabee Sanders, who have all been elevated by Trump to positions where they stand to gain directly from the power they access through him. None could be described as advocating for a world in which feminist legal and political commitments are widely shared. DeVos, in particular, is an example of how conservative women specifically seek to weaken feminist causes. Consider the new regulations she wrote governing how colleges and schools handle sexual violence, which tilt proceedings in favor of men accused of rape and sexual assault.
From what I can tell from her legal writing, Barrett does not believe the Constitution guarantees women equal protection before the law. No matter that her own professional life sits squarely on the rights RBG did so much to secure — including her ability to attend law school, hold a job, earn money, open a bank account and secure a line of credit. Feminists fought hard and long to secure these rights in the law, and that is their legacy.
Women who use their power to harm women by reducing their rights and freedom are anti-feminist.
Barrett’s anti-feminism is about more than abortion rights. She will vote against Roe, that’s guaranteed. Throwing abortion back to the states will compound the lack of access to healthcare that poor women, and, disproportionately women of color, routinely face. But Roe is one among many related examples of settled law that will be upended if Barrett is seated.
Her record is much clearer than Clarence Thomas’s was. She has already ruled on or written about issues directly related to health care. The Trump administration is in court now, trying to have the ACA ruled unconstitutional. Barrett will vote with the administration on that. And Americans who have come to rely on the ACA for their health care will lose it in the middle of a raging pandemic.
Roe was decided on the right to privacy, a right that reaches far beyond access to abortion. Privacy is fundamental to a notion of conscience and to bodily autonomy. It protects civil liberties and civil rights. Privacy is the connective tissue linking voting rights to health care, disability rights, reproductive justice, and protection from discrimination in employment and housing. It enables us as Americans to stand alone and to stand together. RBG knew that reproductive rights are pivotal to equal protection before the law for women.
Being a feminist does not mean cheering when a woman, any woman, gains power. Women can use power to oppress other women. Feminists seek not just abortion rights, but reproductive justice, which includes health care, and access to health care, safe housing and education.
Amy Coney Barrett is a guaranteed vote to unmake a world that feminists, including Ruth Bader Ginsburg, seek.