The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Noah Feldman, who has been getting a lot of play recently in the New York Times, reviewed Linda Greenhouse's new book, Justice on the Brink. He flagged a passage in which Greenhouse compares Justice Barrett to Phyllis Schlafly. I caved and downloaded the Kindle version of the book. Here is the passage:
Forty years later, more than a few people looked at Amy Coney Barrett and saw Phyllis Schlafly. And how could they not, given the similarities in the two women's biographies? That Schlafly and Barrett, one in death and one striding toward a bright future, both filled the public screen in 2020 was just a coincidence—or was it? Seen from one perspective, it was Phyllis Schlafly who made Amy Coney Barrett possible.
During Barrett's confirmation hearing, Lindsey Graham served her a softball question: "People say that you're a female Scalia. What would you say?" Barrett began her answer with her now familiar phrases about Scalia's approach to constitutional and statutory interpretation. Then she caught herself. "I want to be careful to say," she told Graham, "that if I'm confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett." No one could doubt the validity of that statement. Justice Barrett, not Justice Scalia. Justice Barrett, not Justice Ginsburg. Or Justice Barrett, living Phyllis Schlafly's unrealized dream?
Maybe because it's hard to write a drama in which the villain hasn't done anything terrible yet, Greenhouse makes an uncharacteristic misstep in a brief excursus that compares the new justice to the late Phyllis Schlafly. To be sure, Schlafly was an important figure in the early anti-abortion movement. But her anti-feminist crusade against women in the workplace sits oddly with Barrett's lifelong pursuit of a full-time career as a law professor and judge while raising seven (no, that's not a typo) children. The only motivation for the invocation of Schlafly seems to be that, as Greenhouse notes, she was the subject of a television mini-series in 2020, and that both were lawyers with large families. "Forty years later, more than a few people looked at Amy Coney Barrett and saw Phyllis Schlafly," Greenhouse writes, with no indication of who those people were. "And how could they not, given the similarity in the two women's biographies?" This isn't even guilt by association. It's guilt by free association.
I'll try to review the book later.