How the Supreme Court Defines Liberty
Barrett, like most originalists, insists that the Court’s 1954 ruling in Brown v. Board of Education can be defended on originalist grounds—the alternative is unthinkable. The “drafters and ratifiers of the Equal Protection Clause might have thought that the clause permitted a regime of ‘separate but equal’ racial segregation,” she writes. “Tough luck. The commitment to equality controls, not anyone’s expectations about how the commitment would apply.” But it is hard to square that conclusion, however laudable, with the originalist practice of looking to history and tradition to understand the Constitution’s meaning at the time the language was written. When the Fourteenth Amendment was ratified, in 1868, as the Harvard legal scholar Michael Klarman has written, African Americans “were almost universally excluded from, or segregated in, public schools.” The very Congress that proposed the Fourteenth Amendment in June, 1866, established separate schools for Black people in the District of Columbia the next month.
Like her fellow-originalists, Barrett is particularly unconvincing in her discussion of various rights not expressly mentioned in the Constitution that have been deemed worthy of constitutional protection. These “unenumerated rights” include the right to marriage, to use contraception, to engage in same-sex intimacy, and, until Dobbs, to abortion. The Court has identified the source of such protections in the gauzy language of the Fifth and Fourteenth Amendments, which guard against governmental deprivation of “liberty” without “due process of law”—hence the somewhat oxymoronic term “substantive due process.” In an effort to confine the reach of that phrase, the Court has increasingly looked to historical practice; in a unanimous 1997 case rejecting a right to assisted suicide, Washington v. Glucksberg, the Justices said that an unenumerated right can be deemed fundamental, and therefore deserving of the highest degree of constitutional protection, only if it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The majority in Dobbs determined that the right to abortion does not meet that test. As Barrett explains in her book, “The evidence does not show that the American people have traditionally considered the right to obtain an abortion so fundamental to liberty that it ‘goes without saying’ in the Constitution.” But Barrett fails to answer the challenge posed by the Dobbs dissenters: how other unenumerated rights manage to pass this test, and what their future holds. Thomas, in a separate concurrence, said that the Justices “should reconsider all of this Court’s substantive due process precedents,” although the Court this week rejected a bid to overturn its ruling on same-sex marriage.
For Barrett, being parsimonious about declaring that a right is fundamental serves the important purpose of preventing courts from overstepping their constitutional role and imposing their policy views on the country. The Court’s job, she writes, “is to respect the choices that the people have agreed upon, not to tell them what they should agree to.” What Barrett’s narrow conception of constitutional rights and constitutional interpretation misses, however, is the Court’s equally essential counter-majoritarian role: protecting individual liberties and not insisting that they be limited to the norms of a preserved-in-amber moment, one in which white men held political and economic power, women could not vote, and Black people were enslaved. As the dissenters in Dobbs wrote, “the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation.”
A new book by the former Justice Anthony Kennedy, another amalgam of memoir and jurisprudence, serves as a well-timed counterpoint to Barrett’s. Even its title, “Life, Law & Liberty,” is an unintended retort to Barrett’s reluctance to read too much meaning into those deliberately capacious words. Where Barrett’s volume suffers from her allergy to disclosing personal details, Kennedy’s may be the victim of too much enthusiasm for it. Kennedy presents himself as “defined by the West” and rhapsodizes about “Western ideas of liberty and justice.” But the tale of the privileged son of a well-connected Sacramento lawyer and lobbyist is not the stuff of inspiring narrative, nor is it a Western analogue to Thomas’s hard-scrabble beginnings in Pin Point, Georgia, as outlined in “My Grandfather’s Son.” Kennedy relates how he, “a bookish, underweight boy,” ran errands for Earl Warren, a “family friend” and the then governor of California, when his father arranged for him to serve as a page in the state Senate while he was still in elementary school. (After Warren became Chief Justice, he invited Kennedy, then a student at Harvard Law School, for lunch in his chambers.)
All this makes Kennedy’s rendition of his thirty years on the high court, beginning with his selection, in 1987, the most engaging part of the memoir. Kennedy, who, in the late eighties, was serving as a federal appeals-court judge, had known Reagan well from his Sacramento days, but he was the President’s third choice for the position, after the defeat of federal appeals-court judge Robert Bork, one of the original originalists, and the failed nomination of Bork’s colleague on the D.C. Circuit Court, Douglas Ginsburg, after reports that he had smoked marijuana while teaching at Harvard Law School. Kennedy describes his session with Reagan, Meese, and Howard Baker, who had formerly been the Senate Majority Leader and was then Reagan’s chief of staff: “Throughout the interview, Senator Baker seemed to indicate that he and the President had supported me from the beginning. Ed, now seemingly much relieved and fully on board, gave me a warm hug.” But any reservations Meese had about Kennedy were borne out in the ensuing years. The ideological gulf between Bork and Kennedy shaped the nation for the next three decades—until Barrett and the other Trump-appointed Justices undid much of Kennedy’s work.
