Trump's Supreme Court nominee has pledged to live by the late Justice Antonin Scalia's 'judicial philosophy.' Here's what that could mean.
When Amy Coney Barrett stood in the Rose Garden and accepted Donald Trump's nomination to the United States Supreme Court, she praised the late Justice Antonin Scalia, for whom she had once clerked, declaring "his judicial philosophy is mine too."
Her statement is cause for concern. Scalia's Supreme Court decisions chart a map for a second term — and perhaps an election contest — in which Barrett gives Trump whatever he wants. Adhering to Scalia's views also means the new justice would happily erase the gains women and people of color have made in academia and the workplace.
Barrett is slated to fill the late Justice Ruth Bader Ginsburg's seat. Already, there is a movement to declare her "Notorious" (like RBG) and to argue that she is the "new feminist icon." But Barrett’s record displays no bent toward feminism, while feminism and equality was at the absolute core of Ginsburg's judicial philosophy.
In a career filled with highlights, Justice Ginsburg's decision in United States v. Virginia was one of the crown jewels. With Ginsburg writing for a 7-1 majority in which only Scalia dissented, the court held it was unconstitutional for the Virginia Military Institute, a public military college, to only admit men.
The college had a long history of turning out prestigious and highest-ranking military officers, with a laundry list of generals including Gen. George Patton and Gen. George Marshall. No women were allowed.
Ginsburg’s opinion rejected the school’s justification for this scheme, saying that sex classifications may never be used "to create or perpetuate the legal, social, and economic inferiority of women."
By contrast, Scalia would have affirmed VMI's right to forever admit men only. His dissent complained of change being "forced" on Virginia, praised single-sex instruction, and asserted not enough women would enjoy or thrive under the type of instruction offered by VMI. He also implied that removing single-sex education would undo "old fashioned concepts" such as "manly 'honor'" the school provided.
Ginsburg took an expansive view of education that said everyone does better when they have more opportunities, and you can’t limit the best of those opportunities to just men.
Scalia believed that "manly honor" is best served by denying women rights.
If Barrett is asserting she will be just like Scalia, it could mean she is squarely in the camp that doesn't believe women should have equal opportunities. As much as Trump and the Senate Majority have tried to turn her into the new Ginsburg, her own words highlight that she'd happily undo the late justice's signature feminist achievements.
Scalia was also the lone dissenter in a case regarding independent counsels, Morrison v. Olson.
The majority of the court found that independent counsels were constitutional as they didn't violate the separation of powers, nor did they limit the authority of the executive branch. The majority also noted that this wasn’t a situation where Congress had tried to gain control over executive officials, such as the president. Instead, the law still allowed the attorney general — an executive branch employee — to remove the independent counsel.
Scalia hated this idea. He thought the mere existence of independent counsels was unconstitutional because criminal prosecution is a "purely executive power" in that Congress cannot prosecute someone, only impeach. He saw the president’s authority as so vast that everyone who exercised some part of executive branch power could only serve at the president's pleasure.
It's a worldview tailor-made for Trump, and there’s a credible argument to be made that Scalia's thoughts paved the way for Trump’s own wildly outsized view of his power and immunity from oversight. If this is Barrett's view, her future rulings about the sweep of presidential power would be good for Trump, allowing him to push back on oversight.
Given she has already refused to say she would recuse herself from any 2020 presidential election cases, it doesn’t look like she’s terribly interested in standing up to Trump.
Scalia additionally wrote the majority opinion in District of Columbia v. Heller, which created, for the first time, a private right to gun ownership rather than as part of a "well-regulated militia" as mentioned in the Second Amendment.
The ruling struck down D.C.'s gun law that banned handguns and required people to keep their lawfully owned weapons unloaded. It provided such an expansive view of what the Second Amendment allows that, as Justice Breyer wrote in his dissent, it "threaten[ed] to throw into doubt the constitutionality of gun laws throughout the United States."
That was precisely the point. Scalia's decision made it near-impossible to figure out which gun laws would be constitutional, leading inevitably to the view that guns should be as unregulated as possible.
That's undoubtedly Barrett’s view. In Kanter v. Barr, she disagreed with the majority, which upheld Wisconsin’s law disqualifying all felons from having guns, including nonviolent felons such as the plaintiff in that case, Rickey Kanter.
Kanter, a former business owner who was convicted of felony mail fraud in May 2011, sued for the right to have a gun, arguing that as a nonviolent felon, he was not dangerous.
In the lower court, the state of Wisconsin provided evidence showing that though most felons are nonviolent, "someone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use," and that a large percentage of later crimes committed by nonviolent felons are actually violent.
That didn't matter to Barrett, who said the state needed to show that Kanter personally would be dangerous if armed. She got to that conclusion by engaging in the same sort of complicated and tortuous divining of what the Founding Fathers might have thought, much as Scalia did.
Finally, Justice Scalia was always notably bad on affirmative action. He dissented from the court's decision in 2003 that upheld the University of Michigan's affirmative action system because having a diverse student body is a "compelling" state interest. Scalia mocked the university’s goals, saying "cross-racial understanding" was not an "education benefit" that would appear on law student transcripts, and was, therefore, neither relevant nor teachable.
As the Trump administration works to dismantle affirmative action programs across the country, Barrett will prove an adept assistant if she follows Scalia's thinking.
Published with permission of The American Independent Foundation.