The
ultra-right background of Supreme Court nominee Amy Coney Barrett
1 October 2020
On September 26, 2020
President Donald Trump nominated circuit court judge Amy Coney Barrett to the
US Supreme Court to fill the vacancy created by the death of Justice Ruth Bader
Ginsburg, who died eight days before at the age of 87.
Barrett is a protegée of the
late Justice Antonin Scalia, the longtime leader of the court’s right wing. In
the likely event she is confirmed by the Senate this month, Barrett would serve
to fundamentally shift the Supreme Court’s ideological balance much further to
the right.
Barrett’s nomination must be
confirmed by a majority in the US Senate. The Republicans now hold a 53-seat
majority in the 100 member Senate. Fearing the loss of the Presidency, as well
as their majority in the Senate in the upcoming November election, the
Republicans intend to ram through her confirmation before the election takes
place, or if need be, before many of their terms expire in January.
Barrett was born and raised
near New Orleans, the eldest of seven children from a devout Catholic family
whose father was an attorney for Shell Oil. She graduated from Notre Dame Law
school in 1997 and then spent the next two years as a law clerk, first for
Judge Laurence Silberman of the US Court of Appeals for the Washington, D.C.
Circuit and then for Justice Antonin Scalia of the US Supreme Court, the judge
whose deeply reactionary judicial philosophy she had adopted.
From 1999 to 2002 she practiced law in Washington, D.C. at a
firm that merged into Baker Botts. This firm’s senior partner was James Baker,
who was treasury secretary under Ronald Reagan and secretary of state under
George H. W. Bush, and who subsequently served as the lead attorney for George
W. Bush in the contested 2000 presidential election that culminated in the
infamous Bush v. Gore decision.
As a junior lawyer at Baker’s firm, Barrett provided research and briefing assistance in the litigation that culminated in the 5-4 Supreme Court decision to permanently halt the vote count in Florida, preserving Bush’s 537-vote lead and thereby giving him the presidency. Barrett’s mentor Justice Scalia was the organizer of that majority.
From 2002
to 2017 Barrett worked as a law professor at Notre Dame teaching constitutional
law and statutory interpretation. As a Scalia follower, she emphasized originalism in her
academic work and in numerous articles that appeared in various law journals.
Her work caught the attention of arch-conservatives who would promote her
publications and provide platforms for her to espouse her originalist views as
well as her provocative view of stare
decisis, the principle that courts should be guided by legal
precedent, one of the primary obstacles in overturning Roe v. Wade, the landmark
abortion rights case.
Originalism, the basis of
ultra-right legal theory for the last 40 years, holds the view that the
Constitution does not evolve. Instead judges should decide constitutional questions
based solely on the drafters’ original intent. This position began to emerge in
the 1980s and corresponded to the beginning of the social counter-revolution.
The
preceding two decades had seen the Supreme Court validate social reforms
through such decisions as Brown
v. Board of Education, which effectively outlawed school
segregation, as well as rulings affirming such principles as “one person, one
vote” in legislative apportionment, the famous Miranda rule limiting police
questioning, and decisions affirming an implied “right of privacy” in the
Constitution, which culminated in Roe
v. Wade.
Courts became the instrument
of instituting reforms in response to bitter struggles of the working class,
under conditions where American capitalism was wealthy enough to afford them,
but the political system of two right-wing pro-corporate parties was incapable
of enacting them. This period lasted less than 20 years, before the courts
resumed their accustomed role as the bulwark of reaction.
By the 1980s, the postwar
dominance of US capitalism was in decline, and there was a sweeping turn to the
right by the ruling class and all its institutions. As the Reagan
Administration began its direct political assault on the working class, the
undermining of the legal framework that had justified social reform came under
attack by the “originalists” who rejected the “activist judges” who were
supposedly responsible for these reforms by going outside of the intent of the
authors of the constitution. They also hoped to utilize this view to counter
the “activist” courts’ expansion of reproductive rights, enforcement of
Church-state separation, and protection of the rights of criminal suspects.
Antonin
Scalia emerged as one of the principal ideologues for this emerging originalist
view. In 1982 Ronald Reagan appointed him to the highly influential US Court of
Appeals for the D.C. Circuit and in 1986 to the US Supreme Court. Once on the
court, Scalia quickly became its most influential conservative. He was an
opponent of gay rights, affirmative action and abortion rights, and said that
the landmark case of Roe
v. Wade was wrongly decided.
For all its pretensions of
consistency and legal reasoning, the originalist view is just a legal façade to
rationalize preconceived legal conclusions. As with many judges in the
capitalist courts, Scalia would quickly abandon his judicial philosophy
whenever it came into conflict with the social interests he represented.
The most
egregious example of this was Scalia’s decision in Citizens United v. FEC, which
struck down the McCain-Feingold law’s restraints on electoral expenditures by
corporations. Scalia’s originalism was thrown overboard when he held that
corporations have free speech rights under the First Amendment, just as people
do, even though corporations as legal “persons” in control of vast economic
assets were hardly envisioned when the Constitution was written.
Scalia was instrumental in
forming the
Federalist Society in 1982,
to which Barrett
was to later become a
member. The Federalist
Society serves as an
organization of
conservatives and
libertarians that advocates
for a textualist and
originalist interpretation of
the US Constitution.
It has now evolved into the
de facto gatekeeper for right-wing lawyers aspiring to government jobs and
federal judgeships under Republican presidents. The Federalist Society has
vetted all of Trump’s list of potential Supreme Court nominees. As of March 2020,
43 out of 51 of Trump’s appellant court nominees were current or former
members. Of the current eight members of the Supreme Court, five—Kavanaugh,
Gorsuch, Thomas, Roberts, and Alito—are current or former members, along with
nominee Barrett.
Scalia’s widow attended
Barrett’s nominating ceremony where Barrett made special mention to her most
important mentor. “I clerked for Justice Scalia more than twenty years ago, but
the lessons I learned still resonate,” she said. “His judicial philosophy is
mine, too.”
Barrett’s judicial career
began in 2017 when Trump nominated her to the US Court of Appeals for the
Seventh Circuit, which covers Wisconsin, Illinois, and Indiana. Barrett has
been on Trump's list of potential Supreme Court nominees since 2017, almost
immediately after her court of appeals confirmation.
In July 2018, after Justice
Anthony Kennedy’s retirement announcement, she was one of three finalists that
Trump considered before he ultimately nominated Brett Kavanaugh. Reportedly,
although Trump liked Barrett, he was at the time was concerned that her lack of
experience on the bench would make her nomination vulnerable to attack, while
telling aides that he was “saving” her for possible nomination to the Ginsburg
seat, so that a woman would replace a woman.
In a 2013
law review article Barrett examined the role of the doctrine of stare decisis, which is
Latin for “to stand by things decided” and is shorthand for respect for
precedent. The doctrine is, Judge Barrett wrote, “not a hard-and-fast rule in
the court’s constitutional cases,” and she added that its power is diminished
when the case under review is unpopular.
Barrett
then listed seven cases that should be considered “superprecedents,” cases the
court would never consider overturning. The list included Brown v. Board of Education,
but not Roe v. Wade.
In explaining why the abortion ruling was excluded, Barrett referenced
scholarship agreeing that in order to qualify as “superprecedent,” a decision
must have widespread support from not only jurists but politicians and the
public at large, to the extent of becoming immune to reversal or challenge.
Michael
Gerhardt, a University of North Carolina law professor who has written
frequently on stare
decisis, told the Washington
Post that Barrett’s approach to overturning precedent was
“radical.” If Barrett puts her academic views into action and four other
justices go along, he said, “it will produce chaos and instability in
constitutional law.”
In a 2017 law review article
written before she joined the appeals court, Barrett was critical of Chief
Justice Roberts’s 2012 opinion sustaining a central provision of the health
care law. “Chief Justice Roberts pushed the Affordable Care Act beyond its
plausible meaning to save the statute,” she wrote. On November 10, 2020, one
week after the election, the Supreme Court is scheduled to hear another case
attacking the constitutionality of the Affordable Care Act.
Barrett has also emphasized
how she relies deeply on her strict adherence to her Catholic faith, even as
she stresses that it does not affect her judicial decisions.
She is a member of a
predominantly Catholic
group called People of
Praise. It promotes
charismatic Catholicism, a
movement that
grew out of the influence of
Pentecostalism,
which emphasizes a personal
relationship with
Jesus and can include
baptism in the Holy
Spirit and speaking in
tongues. The group
upholds the primacy of male
authority within
the family—as it is in the
Roman Catholic
hierarchy.
Ahead of her upcoming Senate
confirmation hearings, Barrett's advocates are now trying to smear questions
about her involvement in People of Praise as anti-Catholic bigotry. Asked about
People of Praise in a televised interview last week, Vice President Mike Pence
responded, “The intolerance expressed during her last confirmation about her
Catholic faith I really think was a disservice to the process and a
disappointment to millions of Americans.”
Pence’s statement referred
to Barrett’s 2017 confirmation hearing to the appellate court when Senator
Diane Feinstein questioned Barrett’s cult-like devotion, saying, “The dogma
lives loudly within you.”
Barrett directly addressed
the issue of judges influenced by their faith in a 1998 paper she co-wrote
titled “Catholic Judges in Capital Cases,” which has since become one of the
most scrutinized works of her career. Barrett co-wrote that Catholic
judges are obligated to follow the law but also “to adhere to their church’s
teachings on moral matters.”
In this article Barrett
wrote that Catholic judges opposed to the death penalty on religious grounds
should recuse themselves from cases that would require sentencing someone to
death.
At her 2017 confirmation
hearing, however, she noted that as a law clerk she had assisted Justice
Scalia, a conservative Catholic and staunch advocate of the death penalty, in
capital cases. Once having been confirmed to the appellate court, any lingering
moral qualms Barrett may have had about the death penalty quickly dissipated as
she has rejected requests to delay executions.
Barrett’s “moral” bearings
quickly reemerged, however, when any cases before her related to abortion. She
has twice dissented to the majority’s opinion holding laws restricting abortion
as unconstitutional. She also was in the minority who wanted the full court to
rehear a decision by a three-judge panel that ruled that Indiana laws requiring
that funerals be held for fetal remains after an abortion or miscarriage and
banning abortions because of the sex, race or developmental disability of a fetus
were unconstitutional.
As to the poor, Barrett
wrote a 40-page dissent from the majority's decision to uphold a preliminary
injunction on the Trump “public charge rule” that would jeopardize permanent
resident status for immigrants who use food stamps, Medicaid and housing
vouchers.
Although every Supreme Court
nomination is important because justices serve for life and decide issues that
impact the lives of hundreds of millions of people, Barrett will be the first
Scalia clerk to be appointed to the bench, and the first confirmation since
1993 when a seat will shift from the “liberal” side of the court to the
“conservative” side.
These terms should be used
with caution, however. While Ginsburg was a liberal on gender issues, and to
some extent on race and democratic rights, she was just as firm an upholder of
capitalist property rights as any of her colleagues.
During the past several
decades, major cases have been decided by 5-4 votes with Ginsburg in the
majority. These decisions include striking down restrictions on abortion,
recognizing same-sex marriage, striking down the death penalty and life without
parole sentences for juveniles, limiting the death penalty to only crimes
involving murder, and the right to judicial review for Guantanamo detainees.
With Barrett replacing Ginsburg, all these cases would likely have gone the
other way.
Moreover, with the
likelihood of a contested presidential election occurring and perhaps once
again being decided by the Supreme Court, Barrett’s accession to the court will
give Trump three justices named by him, joining Alito, Thomas and Roberts, in a
6-3 pro-Republican majority, to back an electoral coup d’état.
In the event Trump is
defeated and removed, Barrett would be part of a 6-3 right-wing majority, which
a President Biden could use as an excuse every time he rebuffed popular demands
to reverse the ultra-right policies of his predecessor and undo their
reactionary consequences.
No comments:
Post a Comment