Amy Coney Barrett spoke a few days ago, alongside Mitch McConnell at the McConnell Center in Kentucky. She wanted to assure everyone that the Supreme Court was not composed of “a bunch of partisan hacks.” She said that “They must be hyper-vigilant to not let personal biases creep into their decisions, because judges are people, too.”
The absolute gall and arrogance and partisanship (some might call it irony, but that is too kind a word) of a newly installed Supreme Court Justice who has been championed by the Far Right for years, going to an event alongside the absolutely rigidly partisan Republican Senate Minority Leader, who prevented a hearing on a Supreme Court nominee made by the Democratic President, is beyond astounding. It is absolutely redolent of totalitarianism and religious/political orthodoxy.
That was Barrett speaking to her flock of supporters, alongside the person who put her on the Court. It is very rare for Supreme Court Justices to do public appearances, much less try to rationalize their viewpoints. To show up with McConnell is horrifying.
McConnell praised her at this event, of course he did. He said that “she does not legislate from the bench.” That has been the phrase used by the Right for decades, and they don’t even know what they are saying, but that isn’t the point for them, because for the untutored, it sounds like good policy. “We don’t want judges to legislate, we want them to decide,” is the mantra.
Well, every decision made by a Supreme Court is deciding the law. The Court can throw out legislation which they decide is unconstitutional. Many, including me, think that this is what they are going to do if a voting rights law ever gets through. If we somehow manage to pass a law trying to limit the purchase of assault weapons, the Court will almost certainly find that unconstitutional. Why? Because they want to. That is legislating from the bench, if one wants to use that term. It is deciding that the bill passed by the Congress, and signed into law by the President, shall not be enforced. It is overriding the legislature, hence in so many words, legislating.
That is the role of the Supreme Court, as it evolved from the early days of Chief Justice Marshall, through the centuries. They have given themselves the power to overturn legislation, and also to make rules on their own. How is the decision in “Citizens United” not making a law? This garbage spouted by the likes of McConnell, that somehow it is liberal Justices who legislate, while their Justices just decide, is infuriating, but who in the major media points it out?
During the early days of the FDR presidency, he and the Congress tried to enact major legislation to deal with the ravages of the Depression, and to try to help working people stay afloat, and have some power in the workplace. The Supreme Court, composed almost completely of Justices who were appointed by conservative business-favoring Presidents, kept declaring things like the minimum wage or a 40-hour work week unconstitutional, because they violated what these Justices, dubbed “The Nine Old Men,” termed “the freedom to contract.” That phrase, long used by the oligopolies, meant that if someone was willing to work for 5 cents a week to avoid starvation, he should be allowed to do that. That was the doctrine which exemplified the Gilded Age in America.
FDR and his advisors, utterly frustrated by the Court striking down all the New Deal legislation, tried to add seats to the Court. “Oh, you can’t do that!” said the Republicans, and enough people supported them, to make it impossible to achieve. But apparently various senior members of the Court started to realize how vastly unpopular they were, and so they began to resign, allowing Roosevelt to replace them, and eventually get crucial legislation, supported by a vast majority of Americans, passed into law.
The Supreme Court we have today is even worse than that of The Nine Old Men. It is filled with six Justices appointed by Republican Presidents, and essentially chosen by the Heritage Foundation, which arrogated to itself the ability to determine which appointees would do exactly what they wanted them to do.
It used to be that there was some attempt by Presidents to appoint respected legal minds to the bench. And often we saw that the positions of these Justices evolved over time. Warren and Brennan were appointed by Eisenhower. Blackmun was appointed by Nixon, after Senate Democrats had refused to approve the appointments of Haynsworth and Carswell. GHW Bush appointed Souter. All of these evolved to becoming Supreme Court members who valued important individual rights. That was when the Supreme Court worked, at least as well as it could be expected to. Even Frankfurter, who had been a friend of FDR, eventually became the most Conservative Justice on the Warren Court. The thinking and analysis of the Justices was open to their own philosophies as they emerged.
But Republicans were furious at the Warren Court, and at various Justices appointed by Republicans not following their political orthodoxy, and so a system of appointments was developed where the appointees had established a categorical record of always voting in the way that the Right wanted them to. They were also carefully vetted, and undoubtedly in most cases, met with Republican power brokers to assure their doctrinaire positions. And so the Court became more and more Right-Wing in their rulings, there is no other way to put it. The remaining liberal Justices were left to write dissents excoriating the rulings on legal grounds; but who cared, gloated the Far Right. “We are getting our way. We are making the laws to replace the old ones established by the Court which we hated, when we tried to get Justice Douglas impeached for no other reason than that we hated his positions.”
We know the rest of it; how McConnell is proudest of not even holding a hearing on the nominee put forward by President Obama, and making up some idiocy about how the people should decide–even though of course the Republicans love to declaim about how the Court does not make laws. And then they pushed through Kavanaugh, who is a political hack if ever I saw one; his whole career was working for Republicans, trying to get every bit of prurient information in the Lewinsky matter out to the general public; trying to curtail the right to vote, just as Justice Roberts before him had done, which made him a favorite of the Heritage Foundation. These are all political hacks, and they are meant to be. Kavanaugh was in no way a respected Judge. There is one case where he deliberately delayed a decision on a woman’s abortion rights, so that she would not be able to have the abortion in time. “Partisan hack,” and Kavanaugh, are side by side in the dictionary.
And then of course Barrett herself, appointed and confirmed about two weeks after Justice Ginsburg had died, about three weeks before the Presidential election. What happened to “let the people decide?” Oh, that just disappeared. McConnell even tried to say that because Republicans controlled the Senate, “the people” wanted them to approve the nomination. Lindsey Graham said it was because Democrats were mean to Kavanaugh during his hearings. The bottom line. always the bottom line with Republicans, is that they had the brute power to get Barrett confirmed, and they did.
Barrett was long the ideal of the Far Right; she is a person who recently said that she wants to install God’s kingdom on Earth, whatever that means to a Justice of the Supreme Court. Her history has epitomized the definition of ideologue. She was the final nail in the coffin of a liberal Court, the mocking of the entire concept of a judiciary which values the separation of Church and State as a major tenet, as it was outlined in the Constitution.
So what did Barrett and her Right-Wing colleagues on the Court do? They essentially overturned Roe v. Wade, not by trying to cobble together a bunch of words which mean nothing, but just by not even holding a hearing on a Texas law which outlawed every single abortion after six weeks of pregnancy. They didn’t even have the courage to try to write a decision to be analyzed by legal scholars. They use the newly enhanced (by them) “Shadow Docket,” where the so-called Supreme Court issues emergency rulings without even holding hearings or writing opinions. That is what they have devolved themselves into . Oh, they will eventually write a decision full of words about the Mississippi law attempting to ban all abortions; the decision will not specifically say that they are overturning “Roe v. Wade,” but it will essentially allow it, or so close to it as to be the classic distinction without a difference.
So who told Barrett to go to Kentucky and do an event with McConnell? Somebody did, it certainly was not her idea to go there. This was in the nature of a Trump political rally, where he showed up with his supporters and got the media coverage he craved. I did not see the text of Barretts’s speech, but I am sure that she did not try to explain how refusing to hear the appeal to the Texas law, and writing no opinion, but simply letting the law, a law opposed by a strong majority of even the citizens of Texas, stand, is not political hackery of the utmost degree?
As we know, we are seeing a minority population attempt to take over all the law-making in this country. They can’t get these draconian unpopular laws through the Congress, so they will use the alternative technique of having Radical Right legislatures and governors in various states enact these laws, and then their bought and paid for Supreme Court simply refuse to overturn them as unconstitutional. The Texas law is clearly unconstitutional, as it violates Roe, even with the previous carving away of it done by the Roberts Court. But this Court let it stand.
It gives me a tiny bit of pleasure to see that Barrett is apparently unhappy with the way the Supreme Court is now being perceived. But the event she spoke at, with its obvious attempt to purvey the rhetoric of the Far Right: “Oh, we are not taking away your liberties, even as we are doing it, we are just calling balls and strikes, we are not partisan at all,” belies any thought one might have that she will change one iota of her set in stone, doctrinaire religious points of view.
The RIght-Wing Supreme Court may every once in a while issue a decision which is not awful, but that would only obscure the absolute truth that on three crucial aspects of democracy: voting rights; the rights of workers and consumers vs. the power of big business; and abortion rights, the Court will relentlessly find on the side of the people and businesses which put them on the Court, in the same way that Republican legislators only care about the wishes of their donors, not the large majority of voters who are always shown to poll against tax cuts for the wealthy, and for the right to abortion. This is not representative democracy, it is an oligarchy of the wealthy and of fringe religious groups.
Barrett should never have deserved to have been put on the Supreme Court, but there she is, for life, with her patron McConnell standing proudly beside her, delivering his 1840’s South philosophies. Their Supreme Court deserves no respect, they are doing what they were intended to do, and worked toward for the last four decades: be a rubber stamp for the Far Right, with decisions as utterly predictable as those of the phony judiciaries they have set up for centuries in autocracies and dictatorships. Barrett can smile all she wants, and say, “Oh, we must put our partisan views aside,” but that is just the calming smile of the zealot, who is completely happy with her ideas, and cannot wait to impose them on everyone else which is the ultimate goal.
I would like to think that if Barrett came to speak at any legal presentation, a majority of the attendees would ostentatiously walk out. She and her shadow docket colleagues are not deserving of the respect historically accorded to the judiciary in this country; she is a rubber-stamp judge for the Radical Right, for the intolerant, the plutocrats, and those whose version of democracy is that you get radical state legislatures or even a radical Congress to pass laws to benefit a minority of people, and then the Courts approve them, and are there to throw out any laws which somehow get passed by states or Congress, which are not liked by the people who put them there to stop them. It is an evil perversion of the original tenets of our democracy, it is the tyranny of the people whose political ancestors seceded from the Union. If we want to keep our democracy, we must do everything possible to stop them, including adding seats to the Supreme Court, something that Congress has always had the right to do, and has done in the past.
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The Confluence 