There is no shortage of reasons why Amy Coney Barrett shouldn’t be on the Supreme Court.
To start, there’s the small matter of Barrett’s entire nomination being a sham. Even if she were a Merrick Garland-like moderate chosen to placate liberals, the GOP holding a Supreme Court seat open for more than a year in 2016 and 2017 renders the argument that Barrett’s nomination has to be rammed through in approximately three minutes after half of the Senate Judiciary Committee has been exposed to COVID-19 laughable. They’re doing this because they have the power to do it; there is no other reason.
But Barrett, who was confirmed to the Seventh Circuit Court of Appeals in 2017, is not a Garland-like moderate; she’s a radical right-winger and acolyte of the late Justice Antonin Scalia. And one of the more overlooked, troubling parts of her record is her record on race.
Defenders of Barrett hyperventilated when Boston University professor and The Atlantic contributor Ibram X. Kendi pointed out that people like Barrett—who has two adopted children who were born in Haiti—can adopt Black children and still hold views that uphold and perpetuate systemic racism. But take a look at Barrett’s record during her three years as an appellate judge, and that’s exactly what you’ll find.
To start, Barrett seemingly believes that employment discrimination does not exist. In one of her first cases on the Seventh Circuit, Barrett faced a case involving the car parts store AutoZone, and a claim by the U.S. Equal Employment Opportunity Commission that the company was racially segregating its workplaces. Barrett voted to uphold a lower court decision against the plaintiff, denying a new hearing at the appellate level.
“Under the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII so long as the ‘separate’ facilities really are ‘equal,’” the three dissenting judges wrote.
In another case, Smith vs. Illinois Department of Transportation, Barrett wrote an opinion that an employee being called the n-word at work was not itself enough to constitute racial discrimination. While Barrett granted that it was an “egregious racial epithet,” she wrote: “Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”
Barrett’s decision in Smith “shows an extremely narrow interpretation of our civil rights statutes and the experience of Black Americans,” Erinn Martin, policy counsel for the Lawyers Committee for Civil Rights Under Law, told Discourse Blog in a statement.
“In other words,” she continued, “[Smith] must show not only that a reasonable person would find the workplace hostile or abusive as a result of Colbert’s slur, but also that he himself perceived it that way.”
Barrett would also make the Roberts Court even more hostile on voting rights —something many people likely thought was impossible— at a time when they’re more threatened than at any point since before the Voting Rights Act. In her 2019 opinion in the case Kanter v. Barr, Barrett wrote that gun rights are individual rights guaranteed by the Constitution, but that voting rights belong “only to virtuous citizens.”
Considering the Supreme Court is likely to declare the Voting Rights Act all but dead soon, and the largest progressive priority that the Democrats will actually go for has been an expansion of voting rights, Barrett’s confirmation would just be one more giant obstacle to make it easier to vote.
Finally, Barrett is a hard-right punitivist on issues of criminal justice, which disproportionately affect people of color. In a 2010 law review article, Barrett wrote that Miranda rights—which require the police to inform suspects of their rights—were an example of the Supreme Court “over-enforc[ing] a constitutional norm by developing prophylactic doctrines that go beyond constitutional meaning.”
As a judge, Barrett has continued to side with cops and prosecutors against defendants and incarcerated people. When one case came before the Seventh Circuit arguing that someone who had been convicted but not sentenced at the time of the passage of the First Step Act in 2018, Barrett wrote a dissent saying the First Step Act didn’t apply. And Barrett’s record shows a ridiculously narrow interpretation of the Sixth Amendment, including when she rejected the argument from a defendant whose public defender essentially gave up on defending him when the state stopped paying him.
Suffice to say, there’s a reason why Barett’s nomination has been opposed by the NAACP and other civil rights and racial justice groups. “For Americans who care about the fair understanding and application of the nation’s civil rights laws and our Constitution, Judge Barrett’s record raises serious questions and will have potentially long-term negative consequences, particularly when it comes to racial justice,” Martin said. “Her nomination during an ongoing election will silence the wants of half this nation and bolster the credentials of the current administration’s attacks on affirmative action, voting rights and access to health care.”
Aside from her writings and decisions, Barrett has mostly refrained from talking about her views on these issues. But her Senate Judiciary hearing is already underway, and it’s highly unlikely the Democrats won’t grill her over these issues and more. “Every American must understand that with this nomination equal justice under law is at stake,” Sen. Kamala Harris, the Democratic vice presidential nominee, said in her opening remarks on Monday. “Our voting rights are at stake, workers’ rights are at stake, consumer rights are at stake, the right to safe and legal abortion is at stake and holding corporations accountable is at stake, and again, there’s so much more.”
Barrett may stumble into a good decision every once in a while, on issues like the death penalty (Barrett wrote in a 1998 law review article that Catholic judges should “conform their own behavior to the Church’s standard”) and she has a mixed record on questions of qualified immunity for cops. But on the vast majority of issues around racial justice that will come before Barrett, it’s likely that she’ll be your typical conservative Republican justice—and that’s just one more reason why the Democrats should dilute her vote with court-packing when she’s confirmed.