President Donald Trump has selected anti-LGBTQ Judge Amy Coney Barrett, of the 7th U.S. Circuit Court of Appeals, to succeed Supreme Court Justice Ruth Bader Ginsburg, who died last week at age 87.
Trump is expected to officially announce Barrett’s nomination on Saturday, according to The New York Times. He met with her earlier this week, and has reportedly been told by advisors and conservative legal experts that Barrett would be “a female Antonin Scalia,” referring to the former Supreme Court justice, for whom Barrett clerked from 1998 to 1999.
Barrett, a 48-year-old doctrinaire Catholic and former Notre Dame law professor who is beloved by social conservatives, was considered one of the favorites to replace the liberal Ginsburg, primarily because of her personal opposition to abortion, which they believe will influence her decision-making, regardless of the facts of any particular case. If confirmed, she would become the youngest justice on the nation’s highest court.
Barrett has previously called Roe v. Wade an “erroneous decision” and a “dramatic shift,” arguing in 2013 that the crucial abortion rights case shifted the debate over reproductive rights to the national level, to be decided by judges, and suggesting the issue could be better addressed at the state level by elected lawmakers who write and pass laws expanding or restricting access to abortion.
Barrett has also previously predicted that the Supreme Court will give more flexibility to individual states to limit abortions. As a judge on the 7th Circuit, she argued in favor of having all sitting judges on the circuit rehear an abortion-related case.
In that case, Planned Parenthood of Indiana, three of Barrett’s colleagues struck down a law regulating the disposal of fetal remains after an abortion or miscarriage, on the grounds that the law was unconstitutional because fetal remains are not the remains of “persons.”
Barrett, who is considered an “originalist” who interprets laws based on the plain meaning of their text, has amassed a record that is hostile not only to reproductive rights but LGBTQ rights.
She has criticized the Obergefell v. Hodges decision that legalized same-sex marriage nationwide, arguing that the courts should not be deciding whether LGBTQ people can legally marry. Rather, she believes that those who want same-sex marriage should focus on lobbying state lawmakers to pass laws allowing the practice, as Chief Justice John Roberts argued in his dissent.
In a 2016 lecture to students at the Jacksonville University Public Policy Institute, Barrett contended that Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex, does not extend to transgender Americans who are discriminated against because of their failure to conform to gender stereotypes.
Several lawsuits involving transgender students’ ability to access facilities like restrooms or locker rooms have invoked the law to argue that barring them from certain spaces due to their gender identity is inherently a form of sex discrimination.
That interpretation has most recently been embraced by the 4th U.S. Circuit Court of Appeals in hearing the case of Gavin Grimm, a trans alumnus of Gloucester High School who was barred from the boys’ restroom after community members complained that his presence would make cisgender students uncomfortable.
“When Title IX was enacted, it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result, at that time,” Barrett said in her speech. “Maybe things have changed so that we should change Title IX, maybe those arguing in favor of this kind of transgender bathroom access are right. That’s a public policy debate to have. But it does seem to strain the text of the statute to say that Title IX demands it.”
She also repeatedly misgendered transgender individuals, referring to them according to their assigned sex at birth and calling trans women “physiological males,” and even alluding to the well-worn right-wing trope casting transgender people as predators, and alleging their presence in female restrooms poses a threat to young girls or women.
Those beliefs could prove to be consequential, as the court is scheduled to hear the case of Fulton v. City of Philadelphia, in which Catholic Social Services is insisting it should have the right to receive taxpayer money from Philadelphians, even though it actively discriminates against prospective parents based on sexual orientation, marital status, and other characteristics.
When she was first nominated for the 7th Circuit, she was criticized for receiving payment for speeches she gave to the Blackstone Legal Fellowship program of the right-wing legal firm Alliance Defending Freedom.
She was vigorously questioned by then-Sen. Al Franken (D-Minn.) over ADF’s designation as a “hate group” by the Southern Poverty Law Center, saying she was not aware of all of ADF’s policy positions and was simply giving a lecture on constitutional law.
SPLC claims that ADF should be considered a “hate group” due to its misrepresentations of the LGBTQ community, anti-LGBTQ rhetoric, and push for laws, both in the United States and abroad, that criminalize consensual same-sex activity, sterilize transgender individuals, and carve out “religious liberty” exemptions allowing people to deny goods and services to LGBTQ people.
Yet under questioning by Franken, Barrett said she did not believe ADF was a hate group, saying she “never witnessed any discriminatory conduct” on the part anyone affiliated with the organization, and that ADF’s role as co-counsel in a major case before the Supreme Court gave them an air of legitimacy.
Barrett has raised red flags among some civil rights advocates, including the Alliance for Justice, for refusing to rehear a case in which the 7th Circuit ruled against a Black employee of Autozone who claimed that he had faced racial segregation when he was transferred to another branch with other Black employees while white employees were consigned to another store.
She has alarmed workers’ rights advocates for a decision in which she overturned 30 years’ worth of precedent, effectively blocking the Federal Trade Commission’s ability to punish companies that lie to consumers by recouping money from them.
In another case, she penned a decision denying consumers the ability to enforce their rights under federal law against abusive debt collection practices.
Barrett has also criticized the Affordable Care Act and suggested that she would strike down the law. The Supreme Court is scheduled to hear an argument just days after the November election that could potentially overturn the law, leading to potentially serious consequences.
If overturned, people who have obtained insurance either through the Obamacare exchanges or through expanded Medicaid could lose coverage, and people with pre-existing conditions could be denied coverage or forced to pay higher premiums due to the elimination of provisions preventing insurance companies from discriminating against them.
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