The recent and rushed appointment and confirmation of Amy Coney Barrett to the United States Supreme Court, and the ensuing controversy surrounding it, has elevated a discussion around whether the progressive work of Justice Ruth Bader Ginsburg will be undone given the overwhelming number of conservitive leaning judges now on the Court. This plight is one that lawyers, politicians, and the public should pay close attention to, as it has the potential to significantly change the direction of the future of American law.
Ruth Bader Ginsburg. A name almost everyone knows, a name cherished by the masses. Ruth Bader Ginsburg was a pioneer for women in the legal profession. After having to fight for a clerkship in the 1950’s, she went on to become a fierce advocate for women’s rights and gender equality. She co-founded the Women’s Rights project under the American Civil Liberties Union and after nearly three decades of work in the legal profession, part of which was spent serving for 13 years on the Court of Appeals for the District of Columbia Circuit, Bader Ginsburg was nominated to the Supreme Court by President Clinton. After a series of extraordinarily uncontroversial hearings, she was confirmed by the Senate with a vote of 96-3 and became the second woman to be sworn in as a Supreme Court justice. Her extensive time on the bench saw some of the most historic cases for America including The United States v. Virginia and Obergefell v. Hodges. The progress she was an integral part of has helped move the country forward.
In comparing the careers of Justice Ginsburg and Justice Barrett prior to their appointments to the Supreme Court, it is starkly evident that Barrett has dramatically less experience; less than three years as a Judge of the US Court of Appeals for the Seventh Circuit of Chicago, versus Ginsburg’s 13 years. Justice Ginsburg’s philosophy was based on creating equal and equitable opportunities for all Americans which was guided by her view of the Constitution. Ginsburg stated, “Equality was the motivating idea, it was what the Declaration of Independence started with, but it couldn’t come into the original Constitution because of the the odious practice of slavery that was retained.” Ginsburg believed the idea of equality was the intention in the application of the laws of America. Justice Barrett however, during her nomination hearings, stated that “I interpret the constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it.” This left the impression that she perhaps does not view equality of underrepresented groups as passionately as the late Justice. In her recent confirmation hearings, she provided limited depth into her views on many landmark cases, such as Obergefell v. Hodges which legalized same-sex marriage. In deciding not to provide an emphatic level of detail, she left room for the viewers interpretation and forced them to rely on the few public references to her stances. For example, numerous media reported that Barrett signed an ad calling for an end to “the barbaric legacy of Roe v. Wade”, a 1973 landmark decision that provided women with the freedom to chose to have an abortion, without the intrusion of government regulations.
In contrast, it is clear that Coney Barrett is the ideological opposite of Justice Ginsburg who stated at her confirmation hearing in 1993, “It is essential to women’s equality with men that she be the decision-maker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
An important case for American law and the LGBTQ+ community was Obergefell v. Hodges, the turning point in same-sex marriage rights when the Supreme Court ruled the ban of same-sex marrige at a state level was unconstitutional, violating the due process and equal protection clauses of the Fourteenth Amendmant. After this ruling, same-sex marriage was nationally legalized and recognized in the eyes of the law. Bader Ginsburg was steadfast in supporting the rights of the LGBTQ+ community and the freedom to marry who you love, regardless of sex or sexual orientation. She was pivotal in clearly demonstrating to her conservitive colleagues that the law as it relates to marriage had evolved significantly.
It is the concern of a large portion of America that the new Justice may inhibit the evolution of LGBTQ+ law given that she did not provide meaningful context in questions related to marriage equality during her hearings. In addition, reports by media such as the Associated Press noted that Barrett was a trustee for several years at a private school with anti-gay policies. Whether her apparent views on this issue will influence decision making is yet to be determined, but it is completely valid that those in the LGBTQ+ community would be fearful of the regression of their rights and protections.
All of those concerned about the future opinions of Justice Barrett will soon have an opportunity to get a solid idea of where she stands when the Court hears arguments in the case of Fulton v. City of Philadelphia. According to CNN, the case revolves around whether Philadelphia infringed on the rights of Catholic Social Services by refusing to renew contracts with them because they would not work with same-sex couples. Will this case be the beginning of religious groups being legally permitted to discriminate against same-sex couples and will this decision reveal the true ideology of Justice Amy Coney Barret? It is the collective hope of those opposed to her confirmation, that she will assume her position and encourage everyone with fair and rational decision making, unaffected by personal beliefs; however only time will tell. What is certain is that the stalwart supporters of Ruth Bader Ginsburg and those who believe in the fundamental right of equality will be reading every word of every judgement from the new Justice, and will undoubtedly publicly challenge any decisions, opinions and dissents that stymie the progress of equality for all.
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“United States v. Virginia Et Al., 518 U.S. 515 (1996).” Cornell Law School, Legal Information Institute, 26 June 1996, www.law.cornell.edu/supct/html/94-1941.ZS.html.
Reuters. “Who Is U.S. Supreme Court Justice Amy Coney Barrett and Where Does She Stand on the Big Issues?” National Post, National Post, 27 Oct. 2020, nationalpost.com/news/world/who-is-supreme-court-justice-amy-coney-barrett-and-where-does-she-stand-on-the-big-issues.
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“Analysis: How Justice Ruth Bader Ginsburg Viewed Herself as an Originalist.” Constitutional Accountability Center, www.theusconstitution.org/news/analysis-how-justice-ruth-bader-ginsburg-viewed-herself-as-an-originalist/.
Holbrook, Tim. “Opinion: LGBTQ Rights May Be Safe at the Supreme Court — for Now.” Cnn.com, CNN, 6 Nov. 2020, www.google.ca/amp/s/amp.cnn.com/cnn/2020/11/06/opinions/lgbtq-rights-barrett-supreme-court-argument-holbrook/index.html.
Smith, Michelle R. “Barrett Was Trustee at Private School with Anti-Gay Policies.” AP NEWS, Associated Press, 21 Oct. 2020, apnews.com/article/south-bend-only-on-ap-amy-coney-barrett-minnesota-virginia-a8bbabea9ee4d2fb13c6079c09f2f075.
“Ruth Bader Ginsburg Eviscerates Same-Sex Marriage Opponents in Court.” Theguardian.com, The Guardian, www.google.ca/amp/s/amp.theguardian.com/us-news/2015/apr/28/ruth-bader-ginsburg-gay-marriage-arguments-supreme-court.
Alana Gale is a 16 year-old student from St. John’s, Newfoundland and Labrador, Canada. She is a competitive rower and an active participant in several school clubs, including Environmental, Mental Health and Public Speaking. She is passionate about issues around equality, climate change and mental health awareness. In her free time, she enjoys playing piano and reading a good book.