Judge Amy Coney Barrett gave a brief speech on September 26, following President Trump’s remarks introducing her to the nation as his nominee to fill the seat held by the late Ruth Bader Ginsburg on the Supreme Court. Shortly after delivering a memorable line—“I love the United States, and I love the United States Constitution” (more of that from public officials!)—she said something curious and worth exploring.
“Should I be confirmed, I will be mindful of who came before me.”
She was almost certainly referencing Ginsburg, given that the rest of that paragraph is devoted to her; it’s not until the next one that she mentions her one-time boss, Antonin Scalia.
What could it mean?
It’s hard to know for sure, but there is a way that a Justice Barrett legitimately could honor the legal legacy of RBG—accusations that she’s a traitor her sex notwithstanding—while still remaining faithful to her own commitments: to originalism in constitutional interpretation and textualism in statutory interpretation. Moreover, in protecting the core legacy of RBG, she will also safeguard our law—and language itself—from nihilistic, ideological corruption.
Specifically, when it comes to questions of sex and gender in the law, a Justice Barrett can ensure that the admirable ideal that animated RBG’s career—equality before the law regardless of sex—is more and more fully realized.
Currently, progressive activists are attempting to deconstruct the legal categories of “men” and “women” through strategic impact litigation spearheaded by once reputable organizations like the ACLU. They recently achieved what, in fairness, must be described as a massive win in Bostock v. Clayton County (2020)—a statutory interpretation case that, along with two other cases with which it was consolidated, is the Roe v. Wade of transgenderism and sexual orientation, the ripple effects of which will be felt for decades to come.
Disappointingly, Justice Neil M. Gorsuch (joined, of course, by Chief Justice John Roberts and the four liberals, Ginsburg included) wrote for the court; the majority held that that an employer who fires an individual merely for being gay or transgender violates Title VII, a civil-rights law that makes it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s . . . sex.”
It is not my intention here to criticize Bostock, which has already been ably skewered by many on the legal Right for its abuse of logic and common sense—but especially for the violence it does to Title VII’s plain text. “Sex”—whatever it means—obviously describes a phenomenon that is analytically distinct from whatever “sexual orientation” or “gender identity” mean; after all, they’re different terms.
Rather, my aim is to point out that Ginsburg once thought so, too. Back in 1975, she publicly defended in the pages of the Washington Post the notion that men and women were different in certain key respects and so merited differential treatment, in the context of the debate over the Equal Rights Amendment.
“Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy,” she wrote. “Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.”
Ginsburg, seemingly, abandoned that position, but it nonetheless remains fundamentally correct, and it would be noble for a Justice Barrett to be faithful to the soundness of RBG’s once-upon-a-time position on sex differences and do what RBG failed to do.
The same goes for whether both sexes are equally entitled to the protections of Title IX in the educational context and for women’s ability to compete on a level playing field, i.e., not against males, in the athletic context.
One final issue is abortion. Of course, RBG was a staunch supporter of the so-called right to choose—fanatical even. (She dissented in a case that held that Congress’s ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to an abortion.) But on this, she was simply mistaken about what equality demands, and a Justice Barrett, through her opinions, could explicate the deeper and truer understanding of equality that, unfortunately, eluded RBG in life.
Asked about abortion during her four-day confirmation hearing in 1993, RBG testified: “It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
At first blush, that sounds compelling and cogent, but it falls apart upon closer examination and contact with the founding. The Declaration of Independence teaches that “all men are created equal.” In other words, all human beings are of equal moral worth and possess equal natural rights (here, to life) because each is created in the holy image of Almighty God. Even so, men and women are different—something RBG admitted in the Post; in this case, it’s because women have the potential to become pregnant (even if not all women can or do), whereas men in principle cannot and categorically do not.
However, women are not so radically different from and superior to men such that they—but not men—should be legally entitled to exercise arbitrary power over the very existence of another human being. In fact, under the Declaration’s equality principle, no person legitimately possesses that authority; it is tyranny for someone to be subject to the arbitrary will of another, which is precisely what abortion is: a woman’s exercise of raw, unchecked, destructive power over the very life of the baby—another, distinct human being—in her womb.
Some of these things Ginsburg once saw clearly (and maybe still did at the end), like the need for separate bathrooms and changing rooms for men and women; others, like fairness for boys in university settings and for girls in sports, perhaps she saw less clearly; and for still others, like abortion, she never did see with clear vision.
Soon-to-be Justice Barrett will be privileged with the opportunity to bring RBG’s lifelong work and ideals on gender equality into greater alignment with justice, as we continue to strive toward a more perfect union, governed by equal treatment for all under the rule of law.
She should seize the moment, and RBG’s mantle, in the name of true equality.