By Joel D. Joseph, author of Black Mondays: Worst Decisions of the Supreme Court (Foreword by Justice Thurgood Marshall).
Amy Coney Barrett's nomination to the Supreme Court is comparable to Clarence Thomas' appointment. Both nominees pale in comparison to their predecessors. Clarence Thomas is no Thurgood Marshall, and Amy Coney Barrett is no Ruth Bader Ginsburg. Let us not make the same mistake twice and appoint a young jurist to the court who will seek to undo the advances made by her iconic predecessor.
Amy Barrett is just 48 years old. She could serve on the Supreme Court for 40 years. Justice Clarence Thomas is the longest-serving justice on the court now. He was appointed in 1991 at the age of 43 and has been on the court for 29 long years. He is now 72 and could serve another decade or more.
Thurgood Marshall was a giant in the law. He headed the NAACP's efforts to end racial discrimination and argued many cases before the Supreme Court. Justice Ginsburg was also an advocate who fought for years for gender equality, arguing six cases before the nation's highest court and winning five.
Neither Barrett nor Thomas have a track record of fighting for equality or being advocates before they joined the bench. On the contrary, they are both regressive jurists. By regressive, I mean against civil rights, against a woman's right to choose and against gun control.
Judge Barrett has written that abortion is "always immoral", and joined two dissents against decisions supporting the right to choose. One decision stopped the enforcement of a state law that would have required a minor regardless of her maturity or family situation to notify her parents of her decision to have an abortion, giving them veto power, unless a judge found this was not in her best interests. The other decision struck down a state law banning abortions at any stage of pregnancy based on fetal disabilities, including those that were life-threatening.
Judge Barrett dissented from a ruling banning people with felony convictions from possessing firearms, and publicly criticized Chief Justice John G. Roberts Jr. for voting with the high court's liberal bloc to uphold the Affordable Care Act, saying he pushed the statute "beyond its plausible meaning" to save it. Chief Justice Roberts was applying the doctrine of constitutional avoidance. Constitutional avoidance is the principal that, if possible, the Supreme Court should avoid ruling on constitutional issues, and resolve the cases before them on statutory grounds.
Judge Amy Coney Barrett acknowledges that the decision she considers most significant in her relatively short time as a judge "sounds kind of radical": She doesn't believe the Constitution gives the government the authority to ban all felons from owning guns. She rejected the arguments of the Trump administration's Justice Department and broke with the views of two fellow Republican-nominated judges on the appellate panel who had a combined 72 years of experience. Kanter v. Barr, 919 F.3d 437(2019).
Judge Barrett looked at Justice Scalia's important caveat in the 2008 landmark Heller v. D.C. decision establishing an individual's right to gun ownership "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" and saw an opening. At the same time, she said, government may take away certain "civic rights", such as voting or the ability to serve on a jury, upon being convicted of a crime, but not the right to own a gun. She argued that the right to bear arms is more important than the right to vote. While a convicted felon cannot physically hurt anyone with a vote, he or she can certainly cause deadly harm with a firearm. Her position on the felon-dispossession issue is at odds with nearly all other federal appeals-court decisions on the issue and is clearly out of the mainstream of American jurisprudence.
Judges Joel Flaum and Kenneth Francis Ripple, nominated to the 7th Circuit by President Ronald Reagan, ruled for the government and held that all felons lose their right to bear arms. They said the federal and Wisconsin laws banning felons were sufficiently related to the government's goal of keeping guns out of the hands of those convicted of serious crimes.
Justice Ginsburg's most important legacy is that she was a forward-thinking, canny and an unabashed feminist. Beginning in the 1970s, as a co-founder of the A.C.L.U.'s Women's Rights Project, she argued six sex-discrimination cases before the U.S. Supreme Court and won five. In several of them, she sought to invalidate laws that barred men from taking advantage of certain benefits, driving home the point to an all-male court that unequal treatment hurts everyone equally.
Clarence Thomas is the longest-serving Justice on the Supreme Court. When he joined the bench, on October 19, 1991, he was just 43 years old. In 1971, Thomas entered Yale Law School. One of twelve black students, he was the beneficiary of an affirmative-action program; Yale had decreed that ten per cent of the incoming class would be students of color. Thomas owes his Yale pedigree to Thurgood Marshall who pushed for affirmative action in education and successfully argued Brown v. Board of Education that desegregated public schools.
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