WLA Statement on Judge Amy Coney Barrett

Dear members of the WLA community,

The United States Senate will likely vote to confirm Judge Amy Coney Barrett to the U.S. Supreme Court this evening. The Harvard Women’s Law Association (WLA) would normally celebrate the nomination of a woman to occupy such an esteemed position in our country. However, these are not normal times and our organization must speak out.

An unwavering dedication to advancing intersectional feminism is the core of the WLA: WLA seeks to build community and solidarity with immigrants, members of the LGBTQ+ community, people of color, and, of course, other women. Judge Barrett has supported the disenfranchisement of these groups in her professional and personal capacities.

In her three years on the federal bench, Judge Barrett has made it clear that she is not a friend to immigrant communities. She defended one of the Trump administration’s more controversial immigration policies, the “public charge rule,” which empowers the U.S. government to grant or deny immigrants entry into the country based on classist assumptions. Her position empowered her to extend compassion to immigrants, and their families, in desperate situations. She chose not to. She was the final word on denying protection to a man who fled violence in El Salvador and feared for his life if he were forced to return. Judge Barrett sided against a naturalized American citizen and his wife in the decision to deny her a green card based on an unfounded charge that she had attempted to bring her children, who had previously died, into the country unlawfully. She radically altered the life of a man with a single paragraph that precipitated his immediate deportation out of the country he had called home for 30 years. That he had a drug conviction should not have diminished his entitlement to basic human empathy.

If Judge Barrett’s past comments are to be taken as dispositive, she will not be a vocal ally of the LGBTQ+ community either: In 2015, she aligned herself with homophobic rhetoric espoused by her church. At a lecture one year later, Judge Barrett questioned the conclusion in Obergefell v. Hodges and challenged the Supreme Court’s interpretation of Title IX to expand the civil rights protections of transgender Americans.

People of color also have little to celebrate in the confirmation of Judge Barrett to the Supreme Court. She failed to see how being called a disgusting racial slur by his then supervisor might have created a hostile working environment for Terry Smith, a Black man who sued his former employer for workplace discrimination.

Finally, we have serious doubts that Judge Barrett will be an advocate for women. The WLA aspires to use its platform to support women who promote gender justice and gender equality. Though the WLA is nonpartisan, our commitment to gender justice compels us to denounce decisions, and the actors responsible for them, that would deprive women of ownership over their own reproductive choices. She endorsed an advertisement in 2006 that argued in favor of overturning Roe v. Wade and condemned the decision, a seminal jurisprudential victory for women’s rights, as “barbaric.” Judge Barrett also signed on to a statement that seeks to criminalize in vitro fertilization.

Judge Barrett’s record on adjudicating sexual assault cases also calls into question whether she will protect women’s rights. She reversed a $6.7 million judgement awarded to a young woman who was sexually assaulted by a guard while she was incarcerated. The repeated assaults occurred throughout the young woman’s pregnancy. Judge Barrett allowed a Perdue University student to sue the university following its investigation into sexual assault allegations against him, possibly discouraging universities from aggressively pursuing such allegations for fear of incurring legal liability.

That Judge Barrett has been selected to fill the seat of feminist icon Justice Ruth Bader Ginsburg renders her nomination not only troubling but insulting. Justice Ginsburg was a great champion of women’s rights. Judge Barrett has not shown that she will similarly devote her tenure on the Supreme Court to advancing the social, political, and economic equality of women. Justice Ginsburg was beloved by American women, not because she was simply a woman, but because she worked tirelessly to force the law and society to value women. Hers would be massive shoes to fill for anyone, but especially for someone who seemingly does not hear a similar call to action.

Finally, this critique says nothing about the fact that the confirmation of Judge Barrett is feverishly occurring in a manner of days before the 2020 presidential election and against the dying wish of Justice Ginsburg.

The WLA is committed to the realization of “when there are nine,” the rallying call coined by Justice Ginsburg for gender equity on the Supreme Court. To us, this means that our work is not done until the Supreme Court is made up of nine justices who recognize and protect the rights and status of women and members of other historically marginalized communities. While we do not intend to diminish the academic and professional accomplishments of Judge Barrett, the WLA believes that advancing gender equity demands opposing her confirmation to the Supreme Court.

Sincerely,

Harvard Women’s Law Association (WLA) Executive Board