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From the file

Battlegrounds | In the race towards US polling day on 3 November, we decided to look at electoral battlegrounds: the intellectual battle for the future of the Republican Party; Black churches’ fight for relevance in the Black Lives Matter movement; and Donald Trump’s determination to cling onto the Evangelical Christians who voted for him in 2016

The ABC of ACB

Thursday 29 October 2020

Amy Coney Barrett’s nomination to the US Supreme Court may be President Trump’s most enduring legacy. She revealed as little as possible during her confirmation hearings, but enough – if you look closely – to raise some big questions

Donald Trump and Senate Republicans have achieved something unequalled since the presidency of Warren Harding a century ago. They have named three justices to the United States Supreme Court in one short presidential term. With the successful confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Republicans have fundamentally re-shaped the Supreme Court in a way that will endure for a generation.

These three Trump justices are unlike others in the history of the American judiciary in an important way. Donald Trump embarked on his presidency with a pre-cleared list of potential judicial nominees approved by the conservative Federalist Society. This is an unprecedented signal of the ideological infection of American constitutional jurisprudence. Slowly over decades, abortion politics have made it possible to offer a baldfaced political promise to re-shape the judiciary without the usual pretenses about judicial independence, and Senate Republicans have gone along with those presidential promises cheerfully. The question we face is whether judicial nominees are willing to go along, and there are unsettling signs of what may be the answer.

President Donald Trump introduces Judge Amy Coney Barrett as his nominee to the Supreme Court

The sudden death of Associate Justice Ruth Bader Ginsburg on September 18 has thrust Amy Coney Barrett into these charged circumstances. From her selection to the Seventh Circuit in 2017—and, especially, since the Democratic Senator Dianne Feinstein artlessly observed during those confirmation hearings, “The dogma lives loudly within you”—Barrett has, we might say, lived even more loudly as a potential replacement for Ginsberg.

Much as Clarence Thomas (an African American conservative named to the Court in 1991 by Republican George H.W. Bush) posed a pointed contrast with civil rights icon Thurgood Marshall, whom Thomas replaced, it long has seemed clear that Republicans savoured the prospect of contrasting Barrett with Ginsburg, a crusader for gender equality. These sorts of moments hold appeal for Republican culture warriors whose politics for fifty years have been formed by both overt and subtle opposition to civil rights and equal rights. The African American who rejects the civil rights era’s accomplishments as much as the woman who embraces traditionally gendered domestic roles for religious reasons represents a sort of coded reply to claims for civil rights and equal rights: the claims made by liberals about African Americans and women must be flawed. After all, both Thomas and Barrett appear to reject them.

Justice Thomas’s views by now are quite well known. Justice Barrett’s views are determinedly more opaque. It is difficult to say more about Justice Barrett than what appeared to be true during her public hearings. No one can completely conceal their views during four days of public testimony. Even now as confirmation hearings mostly have become theatre, the transparency we find under the hot lights of public attention remains a good reason to hold the hearings. A review of what we heard and saw can be revealing.

Supreme Court Justices Anthony Kennedy, Clarence Thomas and John Roberts

The most unusual feature of Justice Barrett’s nomination to the Supreme Court has concerned her religious faith. It is not unusual that Justice Barrett is a Catholic: in that way, she is like a majority of the justices today and nearly a quarter of Americans. Yet, Justice Barrett is the first member of one of the new ecclesial movements that followed the Second Vatican Council to reach such a high position in government. Alone, that fact is worth a little consideration.

The theologian and historian Massimo Faggioli has written about these new ecclesial movements. They combine “the political connotations of a social-political movement vis-à-vis the institutional status quo and political power” with “the spiritual-theological idea of the church of Christ as a movement as opposed to the ecclesial and theological status quo.” These movements, therefore, reflect an important priority of the Second Vatican Council: for the Roman Catholic Church both to engage with what Council documents called “the modern world,” and for that engagement to be effective as a way to promote justice and peace in the world through social action. There are many of these movements, and they fall into several particular types.

Justice Barrett belongs to People of Praise, an outgrowth of the charismatic renewal that followed the Second Vatican Council. Both the charismatic renewal and People of Praise would be unfamiliar to the most active and engaged Catholics. The simplest way to summarise People of Praise is to say they are an intentional community—something like an order of nuns or brothers living in community, but as families instead of celibates. Members of the community make a covenanted vow which really is about community life, not about any member’s professional life. It concerns “mutual care, concern, and ministry among ourselves,” and not really the constitutional questions a justice of the Supreme Court will adjudicate.

This is an unusual practice of Catholicism. It bespeaks a particular sort of religious commitment, certainly one that Justice Barrett has welcomed into all of the dimensions of her life in a way that is unlike the vast majority of American Catholics. When we think about her public work as a justice of the U.S. Supreme Court, this is worth some examination.

Judge Amy Coney Barrett arrives at the Senate

Let’s begin with the judicial philosophy Justice Barrett claims–originalism. It bears saying that the role of the U.S. Supreme Court in American political life is somewhat unusual. The American system of government was not designed with a constitutional court in the sense of the German Bundesverfassungsgericht or those established in states with more recent constitutions. This role played by the U.S. Supreme Court evolved in steps that began with 1803’s Marbury v. Madison where, on its own appellate authority, the Supreme Court recognised its own power to strike down laws that exceed the scope of the Constitution.

The use of that power grew and gained strength during the Civil Rights era of the 1950’s and 1960’s when the Court took on recalcitrant states by striking down laws enforcing segregation because they defied the Fourteenth Amendment’s guarantees of equality. But it was the Court’s 1973 abortion decision in Roe v. Wade that transformed the Court and American politics. As I wrote in my book, Good Intentions: A History of Catholic Voters’ Road from Roe to Trump, “The idea that a Supreme Court nominee’s judicial philosophy would become a topic of broad public debate was new,” but it took hold because everyone suddenly began to feel they had a stake in the abortion question.

Amy Coney Barrett describes herself as an originalist, an interpretation of the U.S. Constitution made popular by Justice Antonin Scalia, who was appointed to the Court in 1986 by Ronald Reagan and who counted among his law clerks a young Amy Coney. Originalism, in Justice Barrett’s description, means that the Constitution has “the meaning that it had at the time people ratified it.” Originalists claim they are giving deference to democratic decision-making: instead of re-interpreting the Constitution in light of changing circumstances as time goes on, originalists say the Constitution binds us to choices made by the people and a judge must not make a different choice. As Justice Scalia was fond of observing, the Constitution has an amendment process that permits the people to make different choices. It should not be up to judges.

Amy Coney Barrett is sworn in before the Senate Judiciary Committee

This sounds quite fine and humble, but it has a few problems. First, as Justice Barrett acknowledged in her hearings, “originalists don’t always agree.” This should trouble claims that we can know what the people meant at the time when they adopted the Constitution. We know historians report a complicated picture, and very few things have one, clear meaning (especially in politics). But beyond the historical complications of finding the Constitution’s ‘original’ meaning, there also is the fact that there are two different sorts of originalisms.

Justice Scalia, Barrett’s mentor, believed in an originalism that sees the Constitution as “a practical and pragmatic charter of government.” But there is another way to discern the Constitution’s original meaning, if you assume that earlier generations of Americans believed in the authority of natural law (the idea that all people have inherent rights, conferred not by legislation but by “God, nature, or reason”). Justice Thomas, the Court’s lone African American who joined the Supreme Court in 1991, believes in an originalism infused with principles of natural law. The difference is important. Scalia’s views make the Constitution’s text (and whatever we suppose it indicates the people meant when they adopted it) final. If we assume, as Justice Thomas does, that natural law principles guided the people who adopted the Constitution, then we can appeal to natural law as the original source of the Constitution’s meaning.

This could seem strange. But it does not seem strange inside a worldview that imagines a Christian American past that must be recovered. We know this is Justice Thomas’s view. There are some signals in her hearing testimony that Justice Barrett agrees with Thomas more than Scalia.

More, the depth of Barrett’s religious commitment along with the Catholic Church’s intellectual commitments to natural law thinking and the natural affinities between originalism and traditional practices of Roman Catholicism all join together to suggest that Justice Barrett sees natural law principles as governing. When she deflected questions in hearings by saying that a judge should not “impose their will on the world,” she was not excluding the authority of natural law thinking. If she believes those principles were infused by the people in the Constitution she interprets as a Supreme Court justice, she would not be imposing her will. On the other hand, she would have constructed a view of the past that conforms to her desires in the present as many originalists before her have done. Such a perspective would take a very dim view of the right to an abortion, but it would have no qualms about expanding gun rights. Natural law would find no defense for abortion. But natural law can be invoked to define pre-political rights of individuals to speech, religious freedom, and (perhaps) guns that cannot be limited by the state.

Judge Amy Coney Barrett testifies before the Senate Judiciary Committee

A question during her confirmation hearings asked Justice Barrett about how she might rule in a case concerning the upcoming election. Barrett replied that her role in the hearing was not to be a “legal pundit” offering “off the cuff answers,” and instead “to approach cases thoughtfully and with an open mind.” The trouble is—that is true. That is exactly the correct answer we should hope any nominee would give. But an open mind is not an empty mind: an open mind still considers questions within the frame of its own experience and a person’s convictions about what is true and what is not.

We only can guess at what is in Amy Coney Barrett’s open mind, but there are signals. What we know is that there has been a conscious effort to bend the judiciary to the right for a long time. We know from the Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court in the final year of his presidency, from the existence of that list of names vetted by the Federalist Society, and we know from three Trump nominees whose average age at the time of their appointment was 50 (the mean age of all 20 century appointees was 56, at a time when life expectancies were shorter). And, we know that Justice Barrett is a participant in this effort as much as Gorsuch and Kavanaugh because she accepted the nomination and avoided opportunities to tell us how her legal mind works.

Presidents long have hoped to imprint their influence on the Supreme Court, and often they have been surprised. Dwight Eisenhower is reputed to have said “I have made two mistakes, and they are both sitting on the Supreme Court”. Subsequent presidents have tried to avoid surprises like those, and the peculiar events we all just have witnessed are the result. Whatever the effect of those efforts will be we only will learn in a long view—as long as 48-year-old Amy Coney Barrett sits on the Supreme Court.

Next in this file

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