The Most Egregious Distortion in Amy Coney Barrett’s New Book

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Justice Amy Coney Barrett wrote nothing when the Supreme Court repudiated the constitutional right to abortion in the Dobbs^[2] decision three years ago. She wasn’t obliged to write, of course; it was her vote that counted, the crucial fifth vote that gave Justice Samuel Alito his majority. Still, her silence stood out, and not only because two other members of the majority, Justices Clarence Thomas and Brett Kavanaugh, wrote concurring opinions to explain their contrasting views of the decision’s larger implications.

I thought at the time that, considering the rushed confirmation in the first Trump administration’s waning weeks that gave her the seat long held by one of the court’s strongest supporters of abortion rights, Justice Ruth Bader Ginsburg, she owed the country some kind of statement. Dobbs wouldn’t have happened without her, after all. I suppose I wanted some acknowledgment of that fact, some indication that she had not only cast her vote but owned it.

Most specifically, I hoped that she might elaborate on an astonishing observation she made during oral argument^[3] on Dec. 1, 2021. One of the arguments for retaining the right to abortion was that—as the Supreme Court held in its 1992 Casey decision—women’s ability to control their reproductive lives is an essential element of equality. Barrett rejected that idea. Bearing a child need not stand in the way of a woman’s professional advancement, she said, because “safe haven” laws allow mothers to drop off their unwanted newborns in a secure place anonymously and without consequences. “Why didn’t you address the safe haven laws, and why don’t they matter?” she asked the lawyer who was defending Roe v. Wade on behalf of a Mississippi clinic. Listening to the livestreamed argument, I gasped at hearing a woman who had willingly carried five pregnancies to term so casually assume that any woman, even one who had not voluntarily chosen motherhood, could simply walk away. When the argument ended, the outcome appearing a foregone conclusion, I bolted from my desk to clear my head in the cold December air.

Six months later came Dobbs v. Jackson Women’s Health Organization, and Justice Barrett’s silence. And now, more than three years after that decision, comes her book Listening to the Law^[4], for which she reportedly received a $2 million advance from Sentinel, a conservative imprint of Penguin Random House. Containing almost nothing that might be considered personal, it is not a memoir. Rather, it’s a description of how, approaching five years on the bench, she sees her job: a defense both of originalism as a method of constitutional interpretation and of reliance on a law’s text, rather than its purpose, to discern statutory meaning. Of the book’s 246 pages, fewer than three concern Dobbs.

A person with something to say can pack a lot into three pages, so I began to read with some anticipation. I didn’t expect Barrett to critique Dobbs, so it was no surprise that she echoed the structure and assumptions of the majority opinion she signed: The Constitution doesn’t mention abortion; the procedure was widely illegal in 1973, when the court decided Roe v. Wade. (Although, as neither she nor Alito acknowledged, abortion was not illegal and was widely practiced earlier in the country’s history.)

What did surprise me was how Barrett misappropriated a well-known critique that Ginsburg had made of Roe in a law school lecture 33 years ago. Misappropriation is a strong charge, I know. But what else is taking snippets from an academic lecture that then-Judge Ginsburg—who, like Barrett, was a former law professor—gave at a law school 28 years before her death and deploying them to justify an outcome from which RBG would have powerfully dissented?

Yes, in her 1992 address at New York University School of Law, remarks she titled “Speaking in a Judicial Voice,” Ginsburg, a year from becoming a Supreme Court justice, did say that the breadth of the court’s opinion in Roe created “prolonged divisiveness” and “deferred stable settlement of the issue.” She did suggest, as Barrett characterizes her point, that “getting ahead of the American people came at a cost.” (In fact, polling on the eve of Roe showed widespread public support for abortion’s decriminalization.)

But Ginsburg also said in that lecture that the Texas law the court struck down “intolerably shackled a woman’s autonomy.” Barrett didn’t quote that phrase. Nor did she explain that what Ginsburg was saying was not that the court had reached the wrong result, but that Roe would have been a more stable, less vulnerable decision had it been based on the 14^th Amendment’s explicit guarantee of equal protection rather than on the more elusive concept of constitutional due process. And much of the address was devoted to an account of a case that Ruth Ginsburg, in her prejudicial days as a litigator, had tried to bring to the Supreme Court in order to create an equal-protection basis for women’s reproductive freedom. The case fizzled before the justices could hear it, to her lasting regret.

In other words, in a single paragraph, Barrett turned a woman who believed that the right to abortion was essential to women’s liberty into a font of Roe v. Wade criticism. I don’t think I’m wrong to hear a defensive tone in the way Barrett uses Ginsburg’s words to legitimize her own position; it’s as if she is saying: See, even the great liberal icon RBG didn’t like Roe. In any event, critiquing Roe in 1992 is a very far cry from overturning it 30 years later. In her account, Barrett does not even address what it means, to the court and to those whom the decision affects, to upend so consequential a Supreme Court precedent.

In her five years as a Supreme Court justice, Barrett has shown herself to be a precise thinker and careful writer. What makes me sad is that her use of Ginsburg’s long-ago comments is not even original. The anti-abortion crowd has been quoting from that lecture for years. The snippets she has deployed are familiar weapons in the culture war, worn out through misuse, irrelevant to the reality in which women today, as in the past, will do what they need to do to retain control of their lives.

Barrett has titled her book Listening to the Law. Anyone listening three years ago for Amy Coney Barrett’s voice did so in vain. What they heard instead was the court calling Roe v. Wade “egregiously wrong.” Whatever American women made of that message, they are having more abortions now than they did then.^[10]

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