Skip to main content
Menu
What We’ve Managed To Learn About How Amy Coney Barrett Would Rule On Abortion And The Election

Modern Supreme Court confirmation hearings seem like they should be deeply consequential — especially when the nominee has the power to fundamentally shift the balance of the court. But in reality, they can feel like an exercise in futility. Amy Coney Barrett’s hearings, which just wrapped up their third day, are no exception. As my colleague Perry Bacon Jr. wrote yesterday, we’ve mostly learned that Barrett is very good at politely declining to answer senators’ questions. And at one point during the hearings on Wednesday, the question-and-answer session devolved into some friendly wrangling among the Republican senators about the Houston Astros.

There were some crumbs of information that came out of the two days of questioning, though. Here are three takeaways from the hearings on Tuesday and Wednesday:

Barrett refused to answer basic questions about how she’d rule on the election

One of the biggest questions looming over the hearings was how Barrett might rule in a dispute about the election — which could arrive at the Supreme Court’s doorstep just days after she’s confirmed. Barrett said she didn’t intend to be Trump’s “pawn,” but then she mostly evaded questions about presidential power and how she’d rule in various situations involving the 2020 election, including a query from Democratic Sen. Dianne Feinstein about whether the president has the power to unilaterally delay the election. (Short answer: He can’t.)

Democrats pressed Barrett to say she’d recuse herself from any election-related case, but she refused to do so, although she said she’d take the idea “very seriously” if such a case came her way. When asked by Democratic Sen. Amy Klobuchar if she thought absentee ballots were “an essential way to vote for millions of Americans right now,” she said she couldn’t comment. And she also declined to answer a question about whether voter intimidation was illegal — even though this question arguably has an easy, factual answer.

These responses might seem like they’re largely in keeping with Barrett’s broader tactic of batting away the senators’ hypotheticals. But her refusal to take a stand on even fairly straightforward legal issues is perhaps a sign of just how important she knows her views on all of these issues could be in just a few weeks.

She may not view precedents on abortion and birth control as “settled law”

If you tuned into the confirmation hearings on Tuesday and Wednesday, you probably learned a lot of Constitutional Law 101 — because if there was a theme during the second and third day of Barrett’s hearings, it was precedent. Specifically, what Barrett thinks about long-standing (and some more recent) Supreme Court precedents on issues like school segregation, birth control, abortion and same-sex marriage. For the most part, Barrett wasn’t willing to say that these major precedents were “settled law” — a term that’s generally used to refer to cases that are so well-established that the high court wouldn’t revisit them. She did confirm that she saw Brown v. Board of Education, which struck down school segregation, and Loving v. Virginia, which struck down bans on interracial marriage, as correctly decided. But she wasn’t willing to do the same for any other case.

Roe v. Wade, the 1973 ruling that established a constitutional right to abortion, was one such case where Barrett refused to declare a perspective. In fairness, every would-be Supreme Court justice gets asked about it, and they typically tend to dodge — for instance, during his confirmation hearings in 2018, Brett Kavanaugh said, “one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.” But Barrett was perhaps even more cautious in her response. In response to another question from Klobuchar, she said that while there are some cases that are clearly so settled that nobody is pushing for them to be overruled, the fact that she was answering a lot of questions from the senators about Roe indicated to her that Roe wasn’t among them.

Barrett was very careful, of course, to say that her silence on Roe was not a sign that she thought it should be overruled. Barrett also demurred when several senators asked her about Griswold v. Connecticut, the 1965 ruling that struck down a law criminalizing birth control as an invasion of marital privacy. Her answer to a series of questions about the case was essentially — Griswold isn’t up for debate because no one is challenging Griswold. She did not, notably, say that she thought the case was correctly decided — which is a stark contrast from previous Republican nominees, including Chief Justice John Roberts, who said during his confirmation hearings in 2005, “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”

She presented herself as an independent thinker with an “open mind”

While she repeatedly acknowledged her debt to her mentor, the late Supreme Court justice Antonin Scalia, she also said she’d be her own justice who keeps an “open mind” about every case. But she didn’t elaborate further about what that would mean in practice. It’s an interesting question, though, because while Scalia was known as an extremely conservative judge, he also had an independent streak, which was most visible in some occasional liberal votes in cases involving policing and the rights of criminal defendants.

It’s possible that Barrett will also have issues where she similarly breaks the conservative mold — but we didn’t get many clues for what those might be. We do know from a recent analysis from her votes as a judge on the 7th Circuit that she is much closer to the middle of the court on issues involving labor and employment discrimination and criminal defendants. But those were not the issues that took center stage on Tuesday and Wednesday — and overall, the hearings ended without much of a sense of what an “open mind” means to Barrett.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

Comments