As Amy Coney Barrett prepares to begin her tenure as an Associate Justice on the United States Supreme Court, it is a fitting time to take a moment to think critically about Ms. Coney Barrett, as both a professional and as a person, in comparison to her predecessor.
Justice Ruth Bader Ginsburg’s seat on the court is the one Justice Barrett will now fill. Justice Ginsburg was known for her groundbreaking work dismantling gender discrimination statutes embedded in American law in the 20th Century. She was also notable for the family-friendly work environment she cultivated for her clerks as well as her meticulous dedication to work.
Many paint her legacy in sharp contrast with predictions of what Amy Coney Barrett’s tenure on the Supreme Court might look like. Judge Barrett does have a different judicial philosophy — she is a self-proclaimed Originalist, while Justice Ginsburg saw the Constitution as a living document. In addition, her legal career has not been explicitly focused on sex discrimination and civil rights in the same way as Justice Ginsburg’s. But there parallels that can be drawn between the two.
Indeed, there are some significant similarities between the two judges if one looks closely at their careers. First, they were both involved in cases of sex-based discrimination against men which had reverberating implications for all citizens. While Ginsburg argued the appeal in Moritz v. Commissioner of Internal Revenue, Barrett ruled on Smith v. Rosebud Farm. In Ginsburg’s case, the appeal she developed and argued was an innovative tactic used to begin a domino effect for sex discrimination. Barrett’s involvement, a vote in the decision on the aforementioned case, supports the idea that judicial activism, or even living constitutionalism, does not have to be present in order to support the vulnerable, or that the meaning of the law (Title VII) at the time it was ratified can present a fair outcome. A just process, given proper evidence, can yield a favorable result for the plaintiff.
As judges, they have both been shown to favor social change through the legislature rather than through the courts. While this is a characteristic typically sought out in most judges anyway, many believe a more progressive approach to constitutional interpretation is a slippery slope to judicial activism. Even though Ginsburg was known for her progressivism, there were times where she felt the need to clarify the proper role of the judicial branch in contrast to that of the legislative branch.
In reference to Roe v. Wade, she thought that “the Court took the abortion issue away from legislators and instituted its own system of regulation”, and as a result, took out almost all state abortion laws. In a similar manner, Judge Barrett has expressed on multiple occasions that the role of a judge is clearly not the role of a policymaker.
Both judges have also shown a preference for procedural due process over substantive due process. Judge Barrett upheld this standard in Green v. Howser and Justice Ginsburg thought substantive due process served to undermine Roe v. Wade.
With regard to Roe v. Wade, it is tempting to say that the judges’ clearest divergence, when it comes to the advancement of women, is the landmark case legalising abortion in the United States. While the two hold different personal beliefs, their opinions of the case’s legal reasoning may not be so different. In addition her thoughts on Roe mentioned above, Ginsburg wrote in a 1985 law review article that “the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” She believed lodging abortion rights under the right of privacy, as developed in Griswold v. Connecticut (among other precedents), was not the best legal interpretation. Instead, Ginsburg reasoned that the right to an abortion might be protected by the Equal Protection Clause or should at least originate from legislation imposed by the States.
The informal implications of their careers and what time on the bench meant, or will mean, is also worth consideration. They both graduated first in their classes from law school (yes, Ginsburg tied) and went on to garner stellar reputations as professionals, each known for having a work ethic to match her intellectual capability.
Both women are also respected by colleagues on opposite ends of the political spectrum; Ginsburg’s friendship with the late Justice Scalia was well known while Barrett received support for her Supreme Court nomination from co-workers and former students with progressive beliefs.
Their careers and Supreme Court nominations also have significant meaning for women. Both Justices give young women an opportunity to see themselves reflected in the highest levels of the legal profession. When Justice Ginsburg passed away, while the entire country mourned, many women memorialised the “Notorious RBG” as a woman who had pushed doors open for not just them, but for anyone defying a stereotypical gender role. Barrett’s nomination comes with more mixed views. There is a concern that she might detract from the gains women have made since Ginsburg argued for Charles Moritz.
It is impossible to predict if that will happen, but Barrett’s confirmation might mean something entirely new. Ruth Bader Ginsburg was punished at every turn for attempting to practice law while also being a wife and mother of two. It was the second wave of feminism during her time that alleged that a woman must sacrifice such things, or adapt to the (male) normative as much as possible in order to succeed in her work. Amy Coney Barrett represents a generation of women unwilling to compromise their family lives for their careers, but still rising nonetheless. Whether a woman wants this for herself or not, Barrett’s nomination represents a new precedent set for women.