In an exchange with Sen. Dianne Feinstein during the second day of her confirmation hearing on October 13, Judge Amy Barrett tried to play down the threat she poses to precedents that protect our rights. She said that justices can’t just decide to overrule a case they don’t like; they are limited to whatever cases happen to appear before them.
That is true, but Barrett left out an important fact: Conservative justices have invited conservative activists to manufacture such cases. In 2012’s Knox v. SEIU and 2014’s Harris v. Quinn, Justice Samuel Alito invited anti-labor organizations to send the Court a case challenging Abood v. Detroit Board of Education, a 1971 precedent protecting the rights of working people. They enthusiastically did so, and Alito and his fellow conservatives reversed Abood in the 2018 Janus v. AFSCME, a 5-4 case made possible by Trump justice Neil Gorsuch.
Shortly before Barrett’s hearing, Alito and Justice Clarence Thomas released a statement slamming Obergefell v. Hodges, which recognized that same-sex couples are not excluded from the constitutional right to marry. As a CNN report pointed out, “Justice Thomas’s and Alito’s words send a signal to state legislatures to challenge Obergefell, at least on religious liberty grounds.” With Ginsburg and Kennedy gone, only three justices from the Obergefell majority remain on the Court.
In the 2019 case of Gundy v. United States, the far-right justices invited litigation allowing them to revive a repudiated doctrine that was only invoked twice, both times to strike down part of the New Deal. Conservative activists will have a chance to reverse nearly a century of case law upholding the ability of federal agencies to adopt vital health and safety regulations. An ultra-right Court majority strengthened by Barrett puts any progressive legislative agenda at risk.
Republicans know all this. That is why they are taking so many illegitimate steps to rush Barrett onto the Court before the voters have a chance to retire them in the election that has already started.