If your child asked you what it means to be a woman, how would you answer? Would your answer change if they asked you what it means to be a lady? How detailed of an answer would you give? Would you be tempted to spout stereotypes? Having grown up with harmful stereotypes about what it means to be a woman, I see the dangers in assuming it’s a simple question. I loved the answer Judge Ketanji Brown Jackson gave to Senator Blackburn’s attempted gotcha moment question.
Excerpt from WaPo article:

Jackson said. “I’m not a biologist. … Senator, in my work as a judge, what I do is I address disputes. If there’s a dispute about a definition, people make arguments and I look at the law and I decide. …”

Interesting opinion piece about the question Blackburn posed:

Ginsburg did write that “physical differences” are “enduring” in that 1996 decision, but everything that follows in the quote Blackburn offered was Ginsburg quoting another decision, the 1946 case Ballard v. U.S. [which was about women on a jury]. Jackson’s response, though, is very important. “Senator, respectfully,” she said, “I am not familiar with that particular quote or case, so it’s hard for me to comment as to whether or not —” Again interrupted. What matters here is that the argument being made by Ginsburg was specific to the case at hand. Nor was Ginsburg adjudicating the definitions of “man” and “woman,” but, rather, the difference in access that our general understanding of those terms (particularly in 1996) meant in the context of the exclusions in place at VMI [a single sex school]. … So I ask you [dear reader], in that context: What is a woman? And, depending on how much time you want to spend on it, you can come up with a broadly bounded answer. But then uncertainty creeps in. When does womanhood begin? 13? 18? Is it dependent on the presence of body parts like a uterus? Does it derive from hormone levels? Chromosomal markers? There’s something called Turner syndrome in which people have only one X chromosome. Are such individuals women?

https://www.washingtonpost.com/politics/2022/03/23/remarkable-bad-faith-involved-what-is-woman-attack/

Next I’ll discuss Amy Coney Barrett and specifically this interview:

Around minute 40–see link above–Amy Coney Barrett claims that trans people aren’t the gender they identify as.

Barrett uses the phrase “physiologically a boy.” Does she mean genitals, hormone levels, chromosomal markers? Did she use the word “physiologically” correctly?

I fear that Barrett is a cold hearted religious cultish nut that is more concerned with furthering her religious beliefs than making legally sound decisions that affect real people. I also worry about her Federalist Society training. Her version of originalism seems to ignore the Constitution’s preamble, which states that one of its basic purposes is to “promote the general welfare.” There was a time (the Lochner era) when the Supreme Court ruled that legislators couldn’t pass laws to protect workers. (Ref 5 and 6). Will Barrett take us back to the Lochner era? 

Around minute 36 in the video (see link above), Mullaney asks if Congress had a right to pass the Affordable Care Act. He uses the phrase “fundamental right to health care.”  She doesn’t answer the question about a fundamental right to health care, but instead starts rambling about the death penalty and abortion. Later in the interview, Barrett says the Supreme Court wrongly decided that the “exchanges” could mean the “exchanges” offered at the federal level. In other words, she would have ruled to deprive citizens of the subsidy the ACA provides if a state didn’t offer “exchanges”. Luckily the Supreme Court (without her) ruled to allow citizens in states that don’t have exchanges to still qualify for the ACA subsidies.

The NAACP Legal Defense and Educational Fund (LDF) quoted a phrase from an article co-written by Barrett saying Judge Barrett has explicitly stated that “adherence to originalism arguably requires … the reversal of Brown v. Board of Education”  The LDF report says the discussion of Brown “raises serious questions about her commitment to enforcing core civil rights protections. … Treating Brown as potentially mistaken, even if untouchable, is far different from recognizing that it was correctly decided.” (ref 4)  

references

1. Discusses Barrett’s judicial philosophy known as “originalism”
https://www.theatlantic.com/ideas/archive/2020/10/originalism-barrett/616844/
2.  Link to interview at JU with Amy Coney Barrett
https://www.youtube.com/watch?v=7yjTEdZ81lI
3.  Discusses the science behind transgender
https://blogs.scientificamerican.com/voices/stop-using-phony-science-to-justify-transphobia/https://www.apa.org/news/press/releases/2018/10/erase-transgender-definition

4. Discussion of Barrett’s comments on Brown v. Board of Education
https://blogs.edweek.org/edweek/school_law/2020/10/barrett_says_brown_v_board_of_.html
5.  The Supreme Court ruled 5–4 that the law limiting bakers’ working hours did not constitute a legitimate exercise of state powers and so it was unconstitutional. The Court argued for freedom of contract and that unequal bargaining power was irrelevant. 
https://en.m.wikipedia.org/wiki/Lochner_v._New_York#Judgment
6. …judges like Barrett generally have been willing to strike down laws they don’t like. It is an echo of the so-called Lochner era of the early 20th century, when the Supreme Court threw out laws on the minimum wage, child labor or other business regulation. So get ready for a big, long fight over the American economy, with the Supreme Court at the center of it all. 
https://www.nytimes.com/2020/10/19/briefing/amy-coney-barrett-voting-world-series-your-monday-briefing.html

7. Justice Thomas wrote: “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.”
”https://www.law.cornell.edu/supct/html/02-1624.ZC2.html
8. Connecticut law even criminalized the use of contraception altogether. 
https://fortune.com/2015/06/07/50-years-legal-birth-control-workplace/
9. Link about reproductive rights:  https://www.who.int/reproductivehealth/en/
10. The 48-year-old, sworn in by Justice Clarence Thomas at the White House in the 9 p.m.hour, 
https://www.washingtonpost.com/politics/2020/10/27/daily-202-voting-wars-flare-up-justice-barrett-joins-supreme-court/
11. Why didn’t Jacksonville University Public Policy Institute invite someone that would be willing to challenge Barrett’s extremist views?  Regarding this article:
https://www.jacksonville.com/story/news/local/2020/10/27/amy-coney-barretts-2016-lecture-jacksonville-logs-740-000-hits/6035510002/