The Ginsburg Rule: Why Barrett Won’t Give Her Opinion on Abortion, Same-Sex Marriage

Supreme Courthouse depictingThe Ginsburg Rule

We are amid a pandemic and in the middle of a highly contentious election after months of street violence. However, we are also in the middle of embattled confirmation hearings for Judge Amy Coney Barrett.

Barrett is a potential Supreme Court Justice nominated by President Trump to fill the seat vacated by the death of Justice Ruth Bader Ginsburg. She was a clerk for the late Justice Antonin Scalia. Scalia was a devout Catholic and famously opposed to the Roe v. Wade decision that legalized abortion in all 50 states. 

Barrett’s nomination is ruffling feathers. Some think her Catholic faith and the idea that it gives our lawmakers that she would help the Supreme Court overturn Roe.

Some high-ranking democrats have been agitating against Barrett’s nomination for that reason, saying she would support the court to make abortion illegal. This isn’t true. If Roe v. Wade were overturned, the decision would then be up to individual states, and many already have abortion laws on the books. 

So, during her confirmation hearings this week, Barrett has refused to answer questions about whether she believes Roe was wrongly decided. In refusing to answer, she uses a rule set up by Democrats in advance of Ginsburg’s nomination in 1993 – the “Ginsburg Rule.” 

Why Did They Make the Ginsburg Rule?

To understand the Ginsburg Rule, you need to go back to the 1980s. President Ronald Reagan had nominated Robert Bork to the Supreme Court.

The time was not unlike what’s going on today. Robert Bork was commonly thought of as a towering intellect and qualified for the seat. At the time, he was a judge on the U.S. Court of Appeals on the D.C. Circuit.

In the eyes of over half of our Senate, the only problem with him was that he was replacing Justice Powell. Powell had lent his vote in deciding many controversial cases. Abortion being one of them. 

What happened to Robert Bork lead to the coining of the term “Borking.” Democratic senators spent 12 days questioning him, painting him as a racist. He was never confirmed.

Then, in 1993, when it came time for the Senate to deliberate over confirming Justice Ginsburg, Republican senators prepared to give her similar treatment to Robert Bork.

If nominations were going to become about ideology, then the Senate had to discuss Ginsburg’s record. She had been an ACLU litigator. She had argued in favor of:

  • legalizing prostitution
  • against separate prisons for men and women.
  • speculated that there was a constitutional right to polygamy.

Why should Senators not ask her those tough questions? 

Senator Joe Biden from Delaware crafted the Ginsburg Rule. He told Senators not to ask a question or allow judges to answer questions on issues likely to come before the court. The rule said that potential Justices should not make any statement that would create the appearance that they are not impartial. 

Asked about the religious clauses of the first amendment, Ginsburg said, “I prefer not to address a question like that.”

When pressed her for interpretation of Supreme Court precedent, Ginsburg said, “I would prefer to await a particular case.” 

Next, Ginsburg was asked by two senators to address gay-rights decisions. She said, “Anything I say could be taken as a hint or a forecast on how I would treat a classification that is going to be in question before the court.”

Moreover, she refused to answer many questions during her confirmation hearings.  

Here is a quote from Ruth Bader Ginsburg from 1993: 

“A judge that is sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” 

In Conclusion: The Difference Between Ruth Bader Ginsburg and Amy Coney Barrett

Ginsburg acted every bit the judicial activist some senators feared she would be in her time on the Supreme Court. That is where her record differs from the philosophy of Amy Coney Barrett.

Like her mentor, Barrett is a textualist or an originalist. This means she believes that a judge’s role is a narrow one. It is defined by what the law states and not by what she believes morally, politically, or socially.

Some news outlets are painting this as right-wing “radicalism.” However, it is the opposite. It is an upholding of the rule of law. 

Originalism opposes the progressive activism. That is why some of our Senators are trying to find a way to keep Barrett from being nominated.

Finally, it will be interesting to see how this all plays out.