In New York magazine, law professor Barbara McQuade contends that Judge Barrett “is right of Antonin Scalia.” In particular, she argues that whereas Scalia “was willing to allow case precedent to influence what he believed to be the original intent of the framers of the Constitution, Barrett makes no such concession.”
If you suspect that someone who thinks that Scalia looked to “original intent” (rather than “original meaning”) might not have a full grasp of his jurisprudence, you’d be right.
McQuade first complains that Barrett “wrote in a 2013 law-review article that stare decisis — the principle that courts should follow prior case decisions — is a ‘soft rule,’ not an ‘inexorable command,’ with ‘constitutional cases the easiest to overrule.’” But that’s an elementary account of stare decisis that Scalia and every current Supreme Court justice agrees with. Indeed, Barrett’s actual sentence in that article reads:
In the Supreme Court, stare decisis is a soft rule; the Court describes it as one of policy rather than as an “inexorable command.”
Barrett properly cites the Court’s ruling in Payne v. Tennessee (1991) for that basic proposition. Did McQuade edit out the passage I’ve italicized in order to dupe her readers? Or does she not know the basics of stare decisis?
McQuade then says that this sentence from Barrett’s article “should shake fear into” supporters of Roe v. Wade: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
Let me be clear that I hope and expect that Barrett will vote to overturn Roe. But that sentence, clipped out of its context, sheds no light on the question. To repeat what I explained in my critique of Ruth Marcus’s column and in this tweet thread, the entire thrust of Barrett’s article is to defend the Court’s traditional principle of stare decisis on constitutional issues—which requires a “compelling” reason to overturn precedent and which “need[s] to take account of reliance interests”—on the ground that it “promotes doctrinal stability while still accommodating pluralism on the Court.”
Barrett goes on to address the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. She argues that the Court’s longstanding approach “protects institutional legitimacy and reliance interests more than is commonly supposed.” It’s in the narrow context of addressing legitimacy arguments that Barrett offers the tentative (“I tend …”) observation that somehow has McQuade quaking.
At the end of her essay, McQuade pieces together words from the conclusion of a 2017 article by Barrett to suggest that she would be “even less bound to precedent” than Scalia. But what Barrett argues in that article, as her conclusion sums it up (in words that McQuade avoids quoting) is that Scalia rarely was “in a crunch” between originalism and stare decisis, “mostly because of the underappreciated features of our system that keep the law stable without the need for resort to the doctrine of stare decisis.” Barrett doesn’t retreat at all from her embrace of the Court’s traditional principle of stare decisis, and McQuade has no basis for contending otherwise.
I’ll limit myself to noting one other set of errors McQuade makes. She asserts that Barrett “dissented in a case that struck down an Indiana law that banned abortions on the basis of the sex or disability of a fetus.” I don’t know why McQuade leaves out that the anti-eugenics law also banned abortions motivated by the race of the fetus. In any event, as I explain more fully here, Barrett was not on the panel that decided the case (as McQuade’s summary would have you believe) and she did not express a bottom-line view on whether the anti-eugenics law was constitutional. Rather, when the full Seventh Circuit addressed whether to rehear the case en banc, Barrett joined an opinion that stated that the panel was wrong to conclude that the question was governed by existing Supreme Court precedent.