Julia Olson

U.S. Supreme Court nominee Amy Coney Barrett and I were born around the time Justice Ruth Bader Ginsburg argued and won her first gender equality case, Moritz v. Commissioner,[1] decided in 1972 by the U.S. Court of Appeals for the Tenth Circuit in my home state of Colorado. As women, mothers and lawyers, we owe so much to her enduring legacy as an advocate and a justice. The process of filling Justice Ginsburg's seat should dignify her 27 years of Supreme Court service to our nation and her dedication to equal protection of the law.

As Judge Barrett's confirmation hearings began this week, I thought of the questions that my unborn great-grandchildren would implore senators on the Judiciary Committee to ask. Judge Barrett and I both have teenage children. If appointed and blessed with the long life of Justice Ginsburg, Judge Barrett's tenure on the court will affect the security, health and lives of those children today and their children in the future.

In her opening statement, Judge Barrett remarked, "When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children was the party that I was ruling against."

Many generations of American children, alive today and yet to be born, will reap the results of Judge Barrett's perspective and decisions should she be confirmed to our highest court.

At a time when our children's lives are so threatened by avoidable ravages of climate chaos,[2] the questions most begging to be asked in the hearings are not just about the unborn fetus and our privacy rights as women under Roe v. Wade,[3] but about the rights of our children living today and how she will, as the preamble to the U.S. Constitution states, "secure the blessings of liberty to ... our posterity."[4]

The hearings should not be overly weighted on discussing the right to be born at all to the exclusion of the opportunity, once born, to enjoy the same unalienable rights — including health, safety and personal security — one's ancestors enjoyed.

Questions senators should ask Judge Barrett fall under three categories:

Children's Access to Article III Courts

• If the U.S. government is actively contributing to the actual harm of a child, does the child have a right to be heard at trial?
  
  
• Is declaratory relief under the Declaratory Judgment Act enough to establish Article III standing redressability, even if injunctive relief may be unavailable?

Constitutional Rights of Equal Protection for Children

• Under the Constitution, can the political majority in government knowingly deny children a livable and safe climate system with no judicial review?
  
  
• Do or should children have protected status under the Constitution as either a suspect or quasi-suspect class?
  
  
• Should strict scrutiny apply in cases brought by children involving infringement by government actors of their fundamental rights to life, personal security, family autonomy and culture, and religious freedom?

Posterity Clause and the Court's Role as Good Ancestor

• Should the posterity clause in the Constitution guide the court's interpretation of the Bill of Rights and its Article III role in the separation of powers?
  
  
• Is the public trust doctrine part of our body of federal law?
  
  
• What is the court's role as guardian with respect to not just the unborn, but all future generations of Americans in our constitutional democracy?

Our democracy depends on our First Amendment right to petition our government for redress, to seek declarations of rights, and to resolve controversies with our government before our Article III courts, especially when those controversies threaten our children's safety, security and lives.

In recent years, children have brought to our courts tangible personal injuries of constitutional infringements caused by their government, only to be denied access to justice based on judge-made doctrines that insulate the political majorities in power from any checks that our third branch of government is required to provide in our system of separation of powers.[5]

A job description of a Supreme Court justice is well stated by Alexander Hamilton, via Justice Neil Gorsuch: "[T]he job of the judge is to enforce the supreme and enduring law of the Constitution over the current will of the majority even as embodied in duly enacted legislation."[6]

Justice Ginsburg wrote in U.S. v. Virginia, "A prime part of the history of our Constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded. … as our comprehension of 'We the People' expanded."[7] In the 20th century, protections were meaningfully extended to racial minorities as well as women. Children too have gradually secured protections central to their equal unalienable rights.

As early as 1943, the Supreme Court protected children's freedom of speech and religion in West Virginia State Board of Education v. Barnette,[8] and a year later, in Prince v. Commonwealth of Massachusetts, the Supreme Court further protected a child's right to acquire knowledge and instruction of cultural and spiritual traditions from her family without government interference.[9] In Oyama v. California, the court protected an American child against government discrimination imposed on him due to the Japanese citizenship of his father, which resulted in the government taking away the child's inherited land.[10]

In 1982 in Plyler v. Doe, in reviewing government conduct to deny education — which imposed significant risks of injury to a child's well-being based on parental matters beyond a child's control — the Supreme Court applied heightened scrutiny to protect children.[11] In a series of cases, from Roper v. Simmons[12] to Miller v. Alabama[13] and Montgomery v. Louisiana,[14] the Supreme Court extended Eighth Amendment protection from cruel and unusual punishment of children by barring sentences of death and life without possibility of parole.

Why? Because children are special and deserve special consideration.

One of the most important cases for children and our democracy was Brown v. Board of Education.[15] By correcting the injustice of Plessy v. Ferguson,[16] the Supreme Court declared constitutional protections for children from racial discrimination, providing them equal protection of the law. Significantly, the 1954 declaratory relief order in Brown I was completely detached from the 1955 order on injunctive relief in Brown II.[17]

The bare declaration of constitutional rights in resolving the controversy between Black children and their government was transformative. Brown I resoundingly affirmed the stature of declaratory judgments in constitutional cases, even at a time in our history when that landmark declaration flatly rejected the political majority's desire to maintain segregation of the races across the nation.

Judges now use the judicially created doctrines of standing and political question to avoid addressing children's rights. Understanding Judge Barrett's views on how far standing and political question doctrines should be stretched in constitutional cases to close the courthouse doors to children, and what standing children and future generations have in our constitutional democracy to seek declaratory relief, should be an essential part of her job interview.

In 2017, as a nominee for the U.S. Court of Appeals for the Seventh Circuit, Judge Barrett unequivocally stated she would follow Supreme Court precedent because it was not the role of a court of appeals judge to reverse it. However, on divisive areas of constitutional law, Judge Barrett has also said a Supreme Court justice's duty is to the Constitution, not to precedent with which she disagrees.[18]

The American people have a right to know what kind of Constitution and future their great-grandchildren might inherit, and which precedent might not survive a Justice Barrett confirmation. After all, as stated by Sen. Kamala Harris, D-Calif., during the first day of hearings, "The United States Supreme Court is often the last refuge for equal justice when our constitutional rights are being violated."

Children's fundamental rights to equal protection and personal security in the time of the existential climate crisis will one day come before the Supreme Court. The justice who fills Justice Ginsburg's seat should carry forward her dedication to equal protection of the law and ensure that the youngest citizens of our country and our posterity receive the equal constitutional protection to which they are entitled.

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Julia A. Olson is chief legal counsel and executive director at Our Children's Trust.

Disclosure: Olson is co-lead counsel in Juliana v. U.S., a climate suit brought by a group of children against the federal government, now pending before the U.S. Court of Appeals for the Ninth Circuit on a petition for rehearing en banc. 

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Moritz v. Commissioner of Internal Revenue , 469 F.2d 466 (10th Cir. 1972).

[2] A. Lustgarten, How Climate Migration Will Reshape America (The New York Times Magazine September 15, 2020); S. Pelley, The Climate Science Behind This Year's Wildfires and Powerful Storms (60 Minutes October 4, 2020); J. Wu et al., Climate Anxiety in Young People: A Call to Action (The Lancet Planetary Health September 9, 2020).

[3] Roe v. Wade , 410 U.S. 113 (1973).

[4] U.S. Const., pmbl.

[5] Juliana v. United States , 947 F.3d 1159, 1170, 1175 (9th Cir. 2020), petition for en banc review pending; Aji. P. v. State of Washington, No.8-2-04448-1, 2018 WL 3978310 (Wash. Super. Ct. Aug. 14, 2018), appeal docketed, No. 80007-8 (Wash. Ct. App. Sept. 11, 2018); Reynolds v. State, No. 2018-CA-0819 (Fla. 2d Cir. Ct. June 10, 2020), appeal filed, No. 1D20-2036 (Fla. 1st DCA July 1, 2020).

[6] J. N. Gorsuch, A Republic, If You Can Keep It, 186 (1st ed. 2019).

[7] United States v. Virginia , 518 U.S. 515, 557 (1996).

[8] West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943).

[9] Prince v. Commonwealth of Massachusetts , 321 U.S. 158 (1944).

[10] Oyama v. California , 332 U.S. 633 (1948).

[11] Plyler v. Doe , 457 U.S. 202 (1982).

[12] Roper v. Simmons , 543 U.S. 551 (2005).

[13] Miller v. Alabama , 567 U.S. 460 (2012).

[14] Montgomery v. Louisiana , 136 S.Ct. 718 (2016).

[15] Brown v. Board of Education , 347 U.S. 483 (1954).

[16] Plessy v. Ferguson , 163 U.S. 537 (1896).

[17] Brown v. Board of Education , 349 U.S. 294 (1955).

[18] https://www.c-span.org/video/?433501-1/amy-coney-barrett-testifies-seventh-circuit-confirmation-hearing-2017, 43:20, 44:45, 1:44:05 ("because the difficulty of [constitutional] amendment means that the Supreme Court's overruling of the case is often the only way to correct the error.").