Judge Amy Coney Barrett pushed back Wednesday against an effort by Sen. Chris Coons (D-DE) to argue that she would endanger the right to contraception because her mentor, the late Justice Antonin Scalia, thought a key decision was wrong.
Coons raised the case of Griswold v. Connecticut (1965), which struck down a state ban on contraception. Scalia had said that the case was wrongly decided because it referred to a “penumbra” of rights, leading to more activist decisions.
The Delaware Senator quizzed Barrett about the case:
Coons: When we spoke on the phone last week, you said you cannot think of any specific issue of law where you disagreed with Justice Scalia. Do you agree with him that Griswold was wrongly decided, and thus states should be able to make it illegal to use contraceptives if they so choose?
Barrett: Well, Senator, as I have said a number of times, I cannot express a view, yes or no, “A-plus” or “F” — in my other capacity, I get to grade, but not in this particular capacity with respect to precedent. I think that Griswold is very, very, very, very, very, very unlikely to go anywhere. In order for Griswold to be overruled, you or a state legislature would have to pass a law prohibiting the use of birth control, which seems, you know, shockingly unlikely. And then a lower court would have to buck Supreme Court precedent and say we are not following Griswold. Again, seems very unlikely. So I think that it’s an academic question that wouldn’t arise, but it’s something that I cannot opine on, particularly because it does lie at the base of substantive due process doctrine, which is something that continues to be litigated in court today.
Coons: For the benefit of those watching, Judge Barrett, as I think you well know, your predecessors talked about Griswold in detail. Chief Justice [John] Roberts said he agreed with the Griswold Court’s conclusion. He shared your view that he is comfortable commenting because it does not appear to be an area that would ever come before the Court. Justice [Samuel] [A]lito, Justice [Brett] [K]avanaugh said essentially the same thing, that they agreed. In fact, Justice [Elena] [K]agan, who you have been citing on the “no grading,” said i do, that she is willing to speak to it. And as every nominee has, “I do support the result of Griswold.” I understand that you are saying to us you are going to be your own justice and you’re very hesitant to talk about this case because it is an anchor to substantive due process. But, let me one more time say, are you unwilling to say, as so many currently serving justices currently have, that at least Griswold is not wrong?
Barrett: I think Griswold isn’t going anywhere in this you plan to pass a law prohibiting couples, or all people, from using birth control. And I think the question, because it’s entirely academic, because it seems unthinkable that any legislature would pass such a law, I think the only reason that it’s even worth asking that question is to lay a predicate for whether Roe [v. Wade] was rightly decided, because Griswold does lie the foundation of that line of precedent. So because Griswold involves substantive due process, an area that remains one subject to litigation all over the country, I don’t think it is an issue, a case, that I can opine on, but nor do i think Griswold is in danger of going anywhere.
Coons: Well, and to be clear about what it underlies, it’s not just that Griswold was a landmark case, as you well know. It anchors a lot of modern liberty interests in personal and family autonomy. It was extended to unmarried couples in Eisenstadt [v. Baird (1972)], and extended to right for women to control their reproductive choices in Roe and [Planned Parenthood v.] Casey [(1992)], but ut was also extended to support same-sex couple intimacy in Lawrence v. Texas, ultimately that same-sex couples have an equal right to marry in Obergefell [v. Hodges (2015)]. The reason I’m taking a few minutes with this is that Justice Scalia dissented in each and every one of these cases. He wrote in one of these decisions that it reflected the Court adopting the so-called homosexual agenda. And just last week, Justices [Clarence] [T]homas and [A]lito issued an opinion stating the Supreme Court needs to fix problems from its holding in Obergewell. So I understand you will be your own justice, and Justice Scalia’s philosophy is significant, but I also think you have made it clear that it is largely your philosophy, and I’m trying to help viewers understand what it means to replace a Justice [Ruth Bader] Ginsburg was someone who may more closely follow Justice Scalia’s approach. If Justice Scalia had had his way, we’d be in a very different country with regards to gender discrimination. In one of Justice Ginsburg’s most celebrated decisions in 1996, a case involving Viginia Military Institute [U.S. v. Virginia], she struck down the male-only admissions policy Decades later, VMI honored Justice Ginsburg in recognition of the contributions its female alumni have made. Justice Scalia was the sole dissenter in that case, and even accused the Court of destroying VMI, which remains standing and strong to this day. Now, I am just getting at how closely you align yourself with Justice Scalia’s jurisprudence. Would you agree with Justice Scalia that Justice Ginsburg’s decision in VMI was wrong?
Barrett: Senator, to be clear, as I think I said in response to this question yesterday, I do share Justice Scalia’s approach to text, originalism and textualism, but in the litany of cases you just identified, the particular votes that he cast are a different question of whether I would agree with the way he applied those principles in particular cases. and I have already said, and I hope that you aren’t suggesting that I do not have my own mind or I could not think independently or that I would just decide, “Oh, let me see what Justice Scalia said about this in the past,” because I assure you I have my own mind. But everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia. So I share his philosophy, but I’ve never said that I would always reach the same outcome that he did.
The question of “substantive due process” involves additional, unwritten rights that some jurists have argued exist implicitly or within the “penumbra” of rights in the Constitution — such as the right to privacy, or the right to abortion.
On the first day of the confirmation hearing, Barrett said: “I want to be careful to say that if I’m confirmed you would not be getting Justice Scalia. You would be getting Justice Barrett. And that’s so because originalists don’t always agree, and neither do textualists. … It’s not a mechanical exercise.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.