06:08, September 29 132 0 theguardian.com

2020-09-29 06:08:05
Conservatives' assault on the supreme court is a judicial tragedy in the making

On Saturday, Donald Trump nominated Amy Coney Barrett to become an associate justice of the supreme court, to fill the seat vacated by the death of Ruth Bader Ginsburg. In one stroke he violated long-held precedents regarding filling supreme court vacancies, undermined the confidence of the American people in the legitimacy of the court, and ensured that the court will turn back decades of progress in civil rights.

This nomination is unprecedented. No justice has been confirmed to a seat on the court during an election year when a vacancy occurred after June. Yet when a vacancy occurred in February 2016 – an election year – the Republican majority in the Senate refused to even consider Barack Obama’s March nomination of Merrick Garland. In fact, when Antonin Scalia died, Obama waited a month to make a nomination out of respect for the mourning process. This time, Trump announced within a day of Ginsburg’s death that he would fill the seat immediately and then made his nomination just a week later.

In a naked acknowledgment of his true motivation, Trump recently said that the country needs a ninth justice because the pending election could well end up before the court and a 4-4 court would be a bad thing. Yet, in 2016, the Republicans were content with a 4-4 court with an election around the corner. Indeed, Republicans threatened that if Hillary Clinton won the election, no new justice would be confirmed, leaving the court with only eight justices throughout her term.

This election is already in progress with thousands (and soon millions) of Americans voting during what will inevitably be a highly contentious confirmation process. This process will inevitably affect the election and thereby politicize the supreme court as never before. The political branches of our government – the executive and legislative branches – are elected by voters; the court, on the other hand, is supposed to be non-partisan. While appointed by the president and confirmed by Congress, the justices are not beholden to any political party but rather to the rule of law.

This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.

If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.

Her short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “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.”

In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.

Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has written that Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia, when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.

When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.

Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.

Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen.

  • Shira A Scheindlin served as a United States district judge for the southern district of New York for 22 years. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society