Compiled and Edited by Rafaela Prifti-
“Established by the United States Constitution, the Supreme Court began to take shape with the passage of the Judiciary Act of 1789 and has enjoyed a rich history since its first assembly in 1790. The Supreme Court is deeply tied to its traditions. Of the federal government’s three branches, the Court bears the closest resemblance to its original form – a 225 year old legacy.” (Supreme Court of the United States Website)
The first woman Supreme Court Justice was appointed by President Ronald Reagan. Justice Sandra Day O’Connor served from 1981 until 2006. Ruth Bader Ginsburg became the second female justice of the U.S. Supreme Court. Named to the U.S. Supreme Court in 1993 by President Bill Clinton. After serving for 27 years, Justice Ginsberg died last month due to complications from metastatic pancreas cancer. In 2009, President Barack Obama nominated Sonia Sotomayor to the Supreme Court following the retirement of Justice David Souter. Justice Sotomayor is the first Hispanic and Latina member of the Court. Elena Kagan is the fourth woman to become a member of the Court. To fill the vacancy arising by the retirement of Justice John Paul Stevens, Kagan was nominated by President Obama in 2010. In the 230-year history of the Supreme Court, four women have served as Justices. As an additional trivia, out of four women Justices, three of them, Ruth Ginsberg, Sonya Sotomayor and Elena Kagan were born in New York.President Donald Trump’s first woman nominee for the Supreme Court, Judge Amy Coney Barrett, has written roughly 100 opinions in more than three years on the 7th U.S. Circuit Court of Appeals. At the ongoing Senate confirmation hearing which began early this week, Judge Barrett refused to discuss her views on the Constitution invoking “Ginsburg’s rule”. “It’s become a standard response by Republican high court nominees to recite Ginsburg’s words from her own confirmation hearing,” wrote Associated Press yesterday. Her opinions include cases on immigration, voting rights, guns, sexual assault on campus, employment discrimination, as well as sign-ons to opinions on abortion.
In June Judge Barrett was in dissent when her two colleagues on a 7th Circuit panel put on hold the Trump administration policy that could jeopardize permanent resident status for immigrants who use food stamps, Medicaid and housing vouchers. Under the new policy, immigration officials can deny green cards to legal immigrants over their use of public benefits. She wrote that existing immigration law and a Clinton-era welfare overhaul had already limited public assistance to noncitizens. The administration was just using leeway those laws had given it, Barrett wrote. The objections of immigrants and their advocates “reflect disagreement with this policy choice and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes,” she wrote.
In the same opinion on gun rights, Barrett dipped into constitutional history to note that states did more to protect the rights of people to own guns than their right to vote. In some states, people who were convicted of crimes lost the right to vote, but not the right to legally have a gun, she wrote. The right to keep and bear arms conveyed by the Second Amendment, by contrast, protects “an individual’s right to protect himself — not in his right to serve in a well-regulated militia,” Barrett wrote, citing Justice Antonin Scalia’s 2008 opinion for the court in a major gun rights case.
In a dissent in the 2019 gun-rights case of Kanter v. Barr, Judge Barrett argued that a conviction for a nonviolent felony — in this case, mail fraud — shouldn’t automatically disqualify someone from owning a gun. The two judges in the majority agreed with Trump administration arguments that the defendant, Rickey Kanter, could not own a gun under federal or Wisconsin law because of his criminal conviction. Barrett used most of her 37-page dissent to lay out the history of gun rules for convicted criminals in the 18th and 19th centuries, consistent with her embrace of interpreting laws and the Constitution according to the meaning they had when they were adopted. Barrett wrote that “while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data that disarming Kanter substantially advances that interest.” She said that her colleagues were treating the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Barrett quoted from a 2010 opinion by Justice Samuel Alito that extended gun rights, but the phrase also has been used more recently by Justice Clarence Thomas and other conservatives to complain that the Supreme Court has shied away from recognizing gun rights.
Barrett has twice joined dissenting opinions asking for decisions blocking laws enacted by abortion opponents to be thrown out and reheard by the full appeals court. Last year, after a three-judge panel blocked an Indiana law that would make it harder for a minor to have an abortion without her parents being notified, Barrett voted to have the case reheard by the full court. In July, the Supreme Court threw out the panel’s ruling and ordered a new look at the case. In 2018, a three-judge panel ruled that Indiana laws requiring that funerals be held for fetal remains after an abortion or miscarriage and banning abortions because of the sex, race or developmental disability of a fetus were unconstitutional. Supreme Court abortion decisions “hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life,’” Judge Frank Easterbrook wrote for the dissenting judges. Last year, the Supreme Court reinstated the fetal remains law, but not the ban on abortions for race, sex and developmental disabilities.
CAMPUS SEXUAL ASSAULT
Barrett wrote a unanimous three-judge panel decision in 2019 making it easier for men alleged to have committed sexual assaults on campus to challenge the proceedings against them. The case involved allegations by a female student at Purdue University that her boyfriend had sexually assaulted her. The students were identified in court documents as John and Jane Doe. Barrett concluded Purdue’s process was unfair and allowed his lawsuit to continue. The judge criticized the university official who ended up siding with the female student.
RACE DISCRIMINATION IN THE WORKPLACE
In Smith v. Illinois Department of Transportation, Judge Barrett argued that the utterance of the n-word is not enough for the plaintiff Smith to win the case and that the use of the n-word changed his subjective experience of the workplace. A possible colleague of Barrett’s took a different view on racial slurs in 2013. Justice Brett Kavanaugh, then serving as a federal appeals court judge in Washington, D.C, said one utterance was enough. “But, in my view, being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that ‘sums up . . . all the bitter years of insult and struggle in America,’ ‘pure anathema to African-Americans,’ and ’probably the most offensive word in English,” Kavanaugh wrote. “No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans. In short, the case law demonstrates that a single, sufficiently severe incident may create a hostile work environment actionable” under federal anti-discrimination laws.