I have a forthcoming piece about the ridiculous shell game where Republican politicians pretend that their Supreme COurt nominees do not have any of the views that virtually all elite Republicans have about what the Court should do. But on Roe, as on many other issues, there’s no real ambiguity, and in the only useful thing he will ever contribute to American politics Josh Hawley is admitting it:
In a pair of general-election debates, both Trump and Vice President Pence danced around the question of the law and abortion access — a stark contrast to then-candidate Trump’s explicit promise four years ago to nominate only justices who would overturn Roe v. Wade, the 1973 decision legalizing the procedure. And in the Senate, an upstart conservative Republican’s push to confirm justices who view Roe as wrongly decided is causing visible discomfort among his GOP colleagues who believe Supreme Court nominees should face no such litmus test in their confirmation process.
In 2006, Barrett signed her name to an Indiana newspaper advertisement in the South Bend Tribune that denounced the “barbaric legacy” of Roe vs. Wade and called for it to be overturned. Barrett was a law professor at the University of Notre Dame at the time, where she was also a member of Faculty for Life.
Sen. Josh Hawley (R-Mo.), who said earlier this year that he would not support a Supreme Court candidate who did not believe the abortion ruling was wrongly decided, said Barrett’s extensive record on the decision, including her opinions, lectures and even her lecture notes, demonstrate that she meets his standard for a justice.
“There’s plenty of evidence, I think, to demonstrate that she understands that Roe is — in my words — an act of judicial imperialism,” Hawley said. “And I feel very comfortable with her on that issue.”
Meanwhile, as Jim “Obergefell” Obergefell observes, she will also be a disaster for LGBTQ rights:
But Barrett’s confirmation would tilt the court even more strongly in that direction. Barrett has strongly suggested that laws on marriage equality should be left to state legislators, not the federal courts. Quoting Roberts’s dissent in a 2016 lecture, she said, “Those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide. . . . So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”
In that same talk, she questioned whether federal anti-discrimination law includes protections for transgender Americans, as the court later decided in Bostock v. Clayton County. “Maybe those arguing in favor of . . . transgender bathroom access are right. That’s a public policy debate to have,” she said. “But it does seem to strain the text of the statute to say that Title IX demands it.”
We remember clearly what life was like before the day that the right of same-sex couples to marry became the law of the land, and the days before other cases on crucial everyday issues were decided. We were able to have, at most, what Ginsburg called “skim-milk” marriages — marriages in which, depending on state laws, we were not recognized as the families that we are; we could not file taxes jointly, or make medical decisions for one another, or, after a death, be treated legally as the surviving spouse. We remember when we could be evicted from our apartments or fired from our jobs for being who we are, or arrested for loving our same-sex partners.
Even if they don’t overrule Obergefell, which is hardly guaranteed, the law is going to move against LGBTQ rights in a lot of ways.