Bench Memos

Law & the Courts

Liberal Lockstep Error on Judge Barrett’s Record?

Someone seems to be feeding the same bad talking point to Ruth Marcus and Joan Biskupic.

In 2018, a Seventh Circuit panel ruled (in Planned Parenthood v. Commissioner) that provisions of an Indiana law that (1) prohibited abortions motivated solely by the race, sex, or disability of the fetus, and (2) governed the disposal of aborted fetuses were unconstitutional. Judge Amy Coney Barrett joined an opinion by Judge Frank Easterbrook that dissented from the denial of rehearing en banc on the disposal question.

On the first issue, Easterbrook said that he was “skeptical” that Supreme Court precedent spoke to “the validity of an anti-eugenics law.” But noting that Indiana had not asked for rehearing on that issue (even as 18 other states submitted an amicus brief seeking rehearing on it), he said that he was “content to leave it to the Supreme Court.” In other words, he did not dissent from the denial of rehearing on that issue.

Indiana filed a certiorari petition with the Supreme Court on both questions. The Court, in an opinion captioned Box v. Planned Parenthood, denied the petition with respect to the anti-eugenics provision but, over the dissent of only Justice Ginsburg and Justice Sotomayor, summarily reversed the panel’s ruling on the fetal-disposal provision.

In her Washington Post column, Marcus complains that Barrett “join[ed] a dissent that labeled the law a ‘eugenics statute.’” Noting that Indiana didn’t seek rehearing on that provision, she exclaims: “Talk about judicial activism—the question wasn’t even before the court.” (Emphasis added.)

But the question about the constitutionality of the eugenics provision absolutely was before Barrett’s court. The typical three-judge panel of a federal appellate court exercises only the power delegated to it by the full court. The en banc court has full authority to revisit any issue decided by the panel. It may do so sua sponte, whether or not a party requests it. (It would be very strange to allow a party to limit the en banc court’s authority over a panel.)

What’s more, Marcus’s phrasing obscures the fact that Easterbrook and Barrett didn’t dissent from the court’s denial of rehearing on this issue. So her only surviving objection is to Easterbrook’s adoption of the shorthand phrase “eugenics statute” for the provision. I think that “anti-eugenics statute” would be a better shorthand (Easterbrook uses “anti-eugenics” once), but what is Marcus’s objection? That an individual decision to abort solely for reasons of race, sex, or disability can’t be labeled eugenic? As Justice Thomas points out in his concurring opinion in the Supreme Court’s denial of certiorari, individual abortion decisions can collectively have a eugenic impact—they can “be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.”

Joan Biskupic makes an oddly similar error in her CNN article on Barrett. She contends that the eugenics provision was “not subject to the appeal” and that Barrett and company went “beyond the legal dispute before them.” She also finds it noteworthy that Easterbrook used the shorthand “eugenics statute.”

Biskupic observes that Barrett “dissented with fellow conservatives” on the disposal question but, like Marcus, somehow thinks it not worth mentioning that the Supreme Court, with liberals Breyer and Kagan in the majority, overturned the Seventh Circuit panel on that question.

[9/22: Since initial posting, I’ve added the last paragraph and made a couple of other tweaks.]

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