What Would Justice Barrett Mean for the US?

Ruth Bader Ginsburg, the second woman appointed to the Supreme Court, died on September 18, 2020. She was 87. 

Ruth Bader Ginsburg was a legend. She served 27 years on the Supreme Court, fighting for women’s rights more fiercely than others of her time and overseeing the Affordable Care Act (which provides healthcare for millions of low-income Americans), the legalization of same-sex marriage, defense of reproductive rights, and so, so much more. She was a strong woman–surviving several bouts of cancer and serving for a time as the only woman on our country’s highest court–who left a distinct and memorable impression on everyone whose lives she touched. Richard Primus, a former clerk of hers and now a professor at the University of Michigan law school spoke with me over the phone only a few days after driving back from her funeral. He told me that RBG and all of her clerks were a family, and emphasized that “every Supreme Court justice is a figure in American legal history, but there are only a few who would have been figures of American legal history even if they had never sat on the Supreme Court… Ruth Bader Ginsburg was in that category.” 

The woman whose gearing to replace Justice Ginsburg begins in one week–Amy Coney Barrett–comes from a drastically different point of view. Barrett is strictly anti-abortion, against the ACA, pro-gun to the point that she wants to pull back on already-existing gun laws, anti-gay-marriage, and a member of a ‘covenant community,’ a sect of Catholicism with a highly authoritarian structure and worrying implications about her view on female subservience. Even besides that, of course, is the pure and simple fact that she should not be anywhere near the Supreme Court. Republicans, in the most hypocritical fashion, have gone ahead with pushing to replace Ginsburg, despite their own precedent, which they set in 2016, that says a President cannot nominate a new Supreme Court Justice in an election year. They’ve brazenly ignored that–including the fact that Merrick Garland was put forward by President Obama in February of 2016, whereas Barrett’s nomination was only 37 days out from the election–going back on their own words. In 2016, Lindsey Graham made this memorable proclamation: “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” In 2020 he says: “We move forward on this nomination knowing that the President has picked a highly qualified individual who will serve our nation well on the highest court in the land.” Not quite the same thing, then.

Despite the total reversal of Republican logic–with the only justification essentially being that ‘Republicans now have control, so we can do it’–it seems likely the Supreme Court will soon be a 6-3 conservative majority, to the dismay of many. What does this mean? Unfortunately, it means quite a lot. As Professor Primus said in our call, “the court with Judge Barrett on it will be the most conservative court in our lifetimes. And the court before her was already the most conservative court in our lifetimes. In fact, the court hasn’t had a majority of Democratic-appointed Justices since 1970. It’s dangerous for the court to have a long, unbroken run of being controlled by appointees of only one party in a two-party system.” Journalist Joan Biskupic, renowned for writing highly influential Supreme Court biographies, said to me that “Amy Coney Barrett’s appointment would likely secure conservative Republicans’ long-sought goal of reversing (or at least seriously undercutting) Roe v. Wade, which made abortion legal in 1973. She would become the sixth conservative, and a bulwark of sorts against further hedging by Chief Justice Roberts on abortion.” It’s also extremely important to stress that Barrett is only 48 and would be expected to serve at least 3 decades, imparting her own agenda on cases that will shape America in unforeseeable and grim ways for years and years to come. 

The new strain of American conservatism, at least in relation to the courts, is like nothing we’ve ever seen before. As Professor Primus said, “the generation that Justice Kennedy belonged to–the generation of elite Republican lawyers–was internally diverse on a lot of social issues, including abortion. Including affirmative action. When Roe was decided, it was decided by a majority-Republican court,” but nowadays, views on the Supreme Court have shifted radically. Republicans helped approve RBG in a 96-3 vote, but since then, the idea of cooperating on the court has been replaced by increasingly partisan acting. Professor Primus backed this up, saying “there have been an increasing number of cases where it is hard for me to think that the court is deciding cases in ways that don’t track strong partisan feelings that are not justified by the law.” And a 6-3 majority, dominated by Trump’s radically conservative appointees, will enable that in a new and dangerous way which all but guarantees that marginalized minorities will be overlooked and that the US government will do even less for its citizens. Barrett’s People of Praise religious group has routinely insisted that women should submit to their husbands and called all their female members “handmaids” until recently. Barrett herself has ruled against victims of sexual assault a number of times. She also signed a letter arguing against contraceptive coverage in the ACA, and said, in a talk to Notre Dame Law School graduates, that a “legal career is but a means to an end … and that end is building the kingdom of God,” clearly implying that she intends to use her access to power to enact her own, deeply anti-feminist agenda.

With RBG’s death, the Supreme Court seems set to fully succumb to its hostile takeover. As Biskupic says, “Judge Barrett’s appointment stems from a deep GOP agenda for the bench, beginning with Richard Nixon, intensifying with Ronald Reagan and reaching a new focus and effectiveness with Donald Trump,” and will result in the total slanted politicization that we’ve already seen sweep circuit courts in the 200 appointments Trump has made in the past four years (mostly white, alt-right men, filling vacancies that Senate Majority Leader Mitch McConnell stonewalled President Obama’s attempts to fill). This overreach is almost certain to succeed, given the startling degree to which the Republican Party has cast aside its principles in favor of following Trump (and the power he wields). It astonishes me every day how many politicians continue to ardently support the reality TV phony. Take Ted Cruz, for example, whose wife Trump called ugly, whose father Trump linked to the JFK assassination, and who himself Trump called a liar. He still endorses our current President. The Republican Party has folded, and with it goes the last semblance of faith we can maintain in our judicial system.

We already know from her time on the appellate courts that Barrett is a conservative extremist who stands against every freedom RBG sought to protect and will allow a biased Supreme Court to rule with absolute impunity in whatever partisan way it chooses; can Democrats do anything? Should they pack the court with more Justices as some now propose? Well, Vice President Biden has already rejected that idea, and it seems that Democratic resources are limited. In other words, if, and likely when, Barrett is confirmed, it is over. RBG dictated from her deathbed a final message: “My most fervent wish,” said the Justice, “is that I will not be replaced until a new president is installed.” Republicans have ignored that. The legitimacy of the Supreme Court is on trial next week, and with nobody willing to stray from the GOP position, the battle for Justice seems lost.

Photo from Shutterstock.

By Theo Baker