Barrett, like most originalists, insists that the Court's 1954 decision in Brown v. Board of Education can be justified on originalist grounds—an alternative is unthinkable. “The drafters and ratifiers of the Equal Protection Clause may have thought that the clause permitted a regime of ‘separate but equal’ racial segregation,” she writes. “Tough luck. It is the commitment to equality that controls, not anyone's expectations of how that commitment will be applied.” But it is difficult to reconcile this conclusion, laudable as it may be, with the original practice of looking to history and tradition to understand the meaning of the Constitution at the time it was written. When the Fourteenth Amendment was ratified in 1868, wrote Harvard legal scholar Michael Klarman, African Americans were “almost universally excluded from or segregated from public schools.” The same Congress that proposed the Fourteenth Amendment in June 1866 established segregated schools for blacks in the District of Columbia the following month.
Like her fellow originalists, Barrett is particularly unpersuasive in her discussion of various rights not expressly mentioned in the Constitution but considered worthy of constitutional protection. These “unenumerated rights” include the right to marry, use contraception, engage in same-sex intimacy, and, before Dobbs, to have an abortion. The Court identified the source of such protection in the vague language of the Fifth and Fourteenth Amendments, which protect against government deprivation of “liberty” without “due process of law”—hence the somewhat oxymoronic term “substantial due process.” In an effort to limit the scope of this phrase, the Court increasingly turns to historical practice; In a unanimous 1997 case overturning the right to assisted suicide (Washington v. Glucksberg), the justices said that an unenumerated right can be considered fundamental and therefore deserving of the highest degree of constitutional protection only if it is “deeply rooted in the history and traditions of this country” and “implicit in the concept of ordered liberty.” The majority in Dobbs decided that abortion rights did not meet this test. As Barrett explains in his book, “The facts do not prove that the American people have traditionally considered the right to abortion to be so fundamental to liberty that it is a ‘go-to’ in the Constitution.” But Barrett cannot answer the question posed by Dobbs's dissenters: how other unlisted rights manage to pass this test and what the future holds for them. Thomas, in a separate concurrence, said the justices “must review all of this Court's substantive due process precedents,” although the Court this week rejected a bid to overturn its same-sex marriage decision.
In Barrett's view, being parsimonious in declaring that the law is fundamental serves the important purpose of preventing the courts from overstepping their constitutional role and imposing their political views on the country. The Court's job, she writes, “is to respect the choices people make.” agreed onrather than telling them that they must agree to” But Barrett's narrow conception of constitutional rights and constitutional interpretation overlooks the Court's equally important counter-majoritarian role: to protect individual liberties and not insist that they be constrained by the norms of a frozen moment in amber when white men held political and economic power, women could not vote, and black people were enslaved. As the dissents wrote in the Dobbs case, “the authors defined the rights in general terms to accommodate the future evolution of their scope and meaning. And throughout our history, this Court has accepted the invitation of the Creators.”
Former Justice Anthony Kennedy's new book, another blend of memoir and jurisprudence, serves as a timely counterpoint to Barrett's book. Even its name: “Life, law and freedom“, is an unintentional response to Barrett's reluctance to place too much weight on these intentionally pithy words. While Barrett's book suffers from her allergy to revealing personal details, Kennedy's may fall victim to too much enthusiasm for it. Kennedy presents himself as “defined by the West” and praises “Western ideas of freedom and justice.” But the story of the privileged son of a well-connected Sacramento lawyer and lobbyist is not the stuff of inspirational storytelling, nor is it the Western equivalent of Thomas's difficult beginnings in Pin Point, Georgia, as described in My Grandfather's Son. Kennedy recounts how he, a “bookish, skinny boy,” ran errands for Earl Warren, a “family friend” and then-governor of California, when his father got him a job as a page in the State Senate while he was still in grade school (After Warren became Chief Justice, he invited Kennedy, then a student at Harvard Law School, to dinner with him. chambers.)
All this makes Kennedy's account of his thirty years on the high court, beginning with his election in 1987, the most fascinating part of the memoir. Kennedy, who served as a federal appeals court judge in the late eighties, knew Reagan well from his time in Sacramento, but he was the president's third choice for the job after the defeat of federal appeals court judge Robert Bork, one of the original sponsors, and the unsuccessful nomination of Bork's fellow D.C. Circuit judge, Douglas Ginsburg, after reports that he smoked marijuana while teaching at Harvard Law School. School. Kennedy describes his meeting with Reagan, Meese and Howard Baker, who was formerly the Senate Majority Leader and then Reagan's chief of staff: “Throughout the interview, Senator Baker seemed to make it clear that he and the President had supported me from the beginning. Ed, who now seemed greatly relieved and fully on board, gave me a warm hug.” But any doubts Meese had about Kennedy were confirmed in subsequent years. The ideological chasm between Bork and Kennedy shaped the nation for the next three decades—until Barrett and other Trump-nominated judges unraveled much of Kennedy's work.
