Wayne O'Leary

High Court Hijinks

By the time this commentary appears, Amy Coney Barrett, sweetheart of the judicial right, will be on the Supreme Court dispensing hard-line conservative opinions with a demure smile. Hers will be one of the fastest high-court confirmations in history. Barrett’s rushed appointment is important beyond measure because, as that perceptive student of all things American, Alexis de Tocqueville, observed in the 1840s, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

By all accounts, Amy Coney Barrett is on a personal level a fine addition to the Supreme Court. The mainstream media has been smitten with her pleasant, self-effacing demeanor, attractive appearance, pious religiosity, and all-American family. So what if Barrett answered virtually no questions at her Senate hearings. Image is all that counts. Remember that judicial right-winger Antonin Scalia was portrayed in the media as a kindly Italian grandfather figure who hosted spaghetti dinners at home and invited ideological opposite Ruth Bader Ginsburg to partake. Forget his voting record; it doesn’t matter.

But it does. Barrett, who will replace the late Scalia as a legal touchstone for the right — the most reactionary Court member other than possibly Clarence Thomas — has a radical agenda at odds with the beliefs of a majority of Americans; most of her positions (e.g. expanding the Second Amendment) are standard right-wing boilerplate, but some are unique to her background.

For starters, Barrett’s spiritual convictions — she’s an extremely conservative Catholic affiliated with a charismatic sect called the People of Praise — have influenced her lower-court jurisprudence in the direction of an enhanced public role for religion. She opposes abortion rights, gay marriage, and government-mandated contraceptive coverage in employer-provided health plans. Most revealing, Barrett is on record as having criticized former liberal Court champion Justice William Brennan, a fellow Roman Catholic, for explicitly placing his oath to uphold the law above his personal religious beliefs. Her expressed attitudes point to an inevitable erosion of separation of church and state in upcoming rulings.

Other areas of concern with the confirmation of Barrett include future government attempts to address global warming, now in serious jeopardy. In Senate hearings, she refused to admit climate change was real, calling it a “controversial” and “contentious” concept, a possible reflection of her familial ties to the fossil-fuel industry. (Barrett’s father was a Shell Oil attorney and leading member of the American Petroleum Institute.) It’s also perhaps why billionaire oilman Charles Koch put his lobbyists to work on behalf of her confirmation.

Then, there’s the Affordable Care Act, which she will shortly adjudicate. Barrett has already publicly dismissed as poorly reasoned Chief Justice John Roberts’ deciding opinions in 2012 and 2015 preserving the ACA. She is said to be partial to the legal doctrine of “severability,” which, if applied to Obamacare, could keep it technically on the books, but hollow it out by striking key operative portions of the law.

From a philosophical standpoint, Amy Coney Barrett is, like her late role model Antonin Scalia, an “originalist” and “textualist,” meaning her Constitution is not flexible and open to modern-day interpretation as a living, evolving document for changing times; it’s rather a relic set in stone in 1789 that must be interpreted literally according to what its authors are thought to have meant at the time, disregarding the intervening two centuries since then. In other words, Barrett is a legal fundamentalist, narrowly reading the Constitution the way religious fundamentalists read the Bible. This alone makes her exceptionally dangerous on the bench in an era of complication and complexity.

With the prospect of Barrett (age 48) and five other youngish far-right jurists dominating the Court for years, the obvious question becomes, what should progressives do? Ordinarily, conservatives would have a right to their choice of judge, even at this late date. But with their yearlong refusal to permit a Senate vote on Merrick Garland in 2016, they violated the unofficial rules, or norms, of governance. (This transgression followed on the 2001 decision of a Republican Supreme Court majority to arbitrarily pick the president of its choice in Bush v. Gore, paving the way for two more GOP justices selected by George W. Bush.) The left, assuming it holds the Senate in 2021, is fully entitled to respond in kind.

The Court is clearly out of balance. Of the 18 justices seated from 1968 to 2020, 14 were chosen by Republican presidents. High-court judges seldom die in office; only one (William Rehnquist) did so between 1955 and 2016. And of those currently serving, two Democratic appointees, Sonya Sotomayor and Stephen Breyer, are apt to retire next; she has health issues (diabetes), and he is the oldest justice at age 82. The Republican contingent appears hale and hearty.

Barring the fortuitous workings of natural selection, there are just two options: term limits to replace lifetime tenure and what is termed “Court-packing” — that is, increasing the number of sitting members. Term limits would probably be the best option; they were favored from the beginning by Thomas Jefferson, and numerous countries impose them on their highest courts, either by set terms (12 years in Germany), or by mandatory retirement ages (75 in Canada and the United Kingdom). The problem: a constitutional amendment would be required.

The easier route would be to have Congress statutorily pack the Court by adding justices. Numerical adjustments in membership have been made throughout American history — six times up to 1869, with the number of justices fluctuating between six and 10. The most famous use of this expedient was FDR’s attempt in 1937 to ensure the constitutionality of his threatened New Deal program by increasing the available vacancies he could fill; the enabling legislation failed to pass, but Court opponents were intimidated in the meantime into case-by-case compliance anyway.

Abraham Lincoln had better luck in 1863, successfully revamping the nine-member Taney Court (whose Southern majority had upheld slavery in the infamous Dred Scott decision of 1857) by replacing departed Southern Democrats with anti-slavery Republicans and pro-Union Northern Democrats, then adding a tenth Unionist justice for good measure.

Obviously, there is nothing sacrosanct about the number nine. By accepting the numerical status quo, the Democratic left would be reduced to just passing “progressive” legislation compatible with the parameters set by the new Court supermajority — an unappetizing prospect at best.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, December 1, 2020

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