BackThe anxiety over a possible loss of judicial balance in America
Amy Coney Barrett’s appointment as a judge evokes worries of hard-won freedoms being rolled back
PremiumMost American presidents lose their political currency the day they are re-elected—from their vice-president downward, politicians get busy planning their own campaigns to succeed the incumbent who can’t run again because of a constitutional term limit. But Donald Trump is unique among American presidents, whether or not he wins next week (and whether or not he leaves the White House gracefully), because his value for Republicans ended Monday, when he delivered the one thing the party had sought for decades and was finally able to achieve—an unbreakable conservative majority in the US Supreme Court.
So crucial was that priority that even the few senators who have timidly spoken out against Trump delivered the result he wanted—the appointment of Amy Coney Barrett as the ninth judge of the Supreme Court. Only one Republican senator out of the 53 voted against her, and all 47 Democrats opposed her, making it the first judicial vote that went along party-lines since 1869, the last time when not a single senator from the minority party voted for a presidential nominee. It is also the first time in 80 years that US conservatives have a decisive majority in its Supreme Court.
Republicans had been yearning for this majority for decades, and since Supreme Court judges are appointed for life, they can now shape the American agenda. They are assured, at least temporarily, that conservative judges will halt liberal advances such as state overreach, especially economic and social intrusions, in pursuit of a “progressive" agenda that the conservatives consider a violation of the principle of a small government. That Republicans ran large fiscal deficits and intruded in the personal right of women to abortion only compounds this tragic irony.
Barrett’s appointment also shows a triumph of cynicism. According to a dubious “rule" Republicans invented, a president should not appoint a Supreme Court judge in an election year. When Barack Obama appointed Merrick Garland to fill a vacancy created by the death of Antonin Scalia in 2016, the Senate majority leader Mitch McConnell haughtily said only Obama’s successor should make the appointment, since the successor could be a Republican, and the new president and the Senate should not have to live with the outgoing president’s choice. That rule does not apply in 2020, McConnell said, because the same party controlled the White House and the Senate.
Obama respected norms, and even as he simmered, he did not use his executive authority to appoint Garland, overriding the Senate. Had he done so, it would have been challenged in courts, creating a constitutional kerfuffle. Given lifetime appointments of Supreme Court judges, shifting the court’s orientation takes a very long time. Wise judges stay the middle course, and many confound expectations, as with Justices David Souter and Anthony Kennedy in the past, and lately, chief justice John Roberts.
Barrett raises concerns among some liberals because she is a devout Catholic. This should not matter, but American social conservatives want the 1973 judgment on Roe vs Wade (which legalized abortion) overturned. Barrett has been a member of an evangelical movement, and she did not indicate how she would vote if abortion came up before the court. As an academic, Barrett has written critically of the court upholding the Affordable Care Act, popularly called Obamacare.
Barrett has the right to those opinions, but she claims to follow the law’s text literally and not guess the intent of legislators. Such an approach freezes laws, setting them in stone, and disregards how society has evolved. The US Supreme Court has given disastrous judgments in the past, as in the Dred Scott case, where its refusal of freedom to a slave acted as one of the final sparks for the 19th century civil war, which in turn led to the end of slavery. American law has also been unfair, as with the so-called three-fifths clause of the US Constitution, which stated that enslaved African-Americans in a state were to be counted as three-fifths the number of Caucasians in that state.
If strict, literalist approaches were to prevail, then judgments such as Lawrence vs Texas, which deemed the criminalization of consensual homosexuality unconstitutional, Obergefell vs Hodges, which legalized same sex marriage, or Brown vs Board of Education, which termed racially-segregated schools unconstitutional, would be difficult, if not impossible. Those judges went beyond literalism, upheld freedom and equality, and understood societal undercurrents. Disregarding them and obstinately clinging to the text fossilizes the law and turns judges into robots and rubber-stamping bureaucrats.
The US Supreme Court is not perfect, but its jurisprudence has over the years advanced civil rights, often inspiring other judiciaries. Barrett’s appointment is profoundly worrisome, given the political intent of rolling back hard-won freedoms. That she replaces Ruth Bader Ginsberg highlights the cruel irony of a woman advancing because of her predecessor’s struggles, only to shut the door behind her on those who are still “yearning to breathe free", in the words of Emma Lazarus, whose sonnet is inscribed on the Statue of Liberty.
Salil Tripathi is a writer based in New York. Read Salil’s previous Mint columns at www.livemint.com/saliltripathi
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