Amy Coney Barrett: A Constitutional Devotee or a Progressive's Worst Nightmare?
In the midst of the overwhelming uncertainty surrounding this week’s presidential election and, more broadly the future of the USA, President Donald Trump has made one thing certain; conservative judges now have a majority in the Supreme Court. Until a couple of months ago, Amy Coney Barrett was a name that would return blank faces and still many remain unsure about what exactly her appointing means for the future of the Supreme Court. So, who is Barrett? And, why has she become a cause for concern among Democrats and the American (and potentially international) left?
Following the death of the Supreme Court justice and liberal icon Ruth Bader Ginsburg, the Trump administration seized a critical opportunity for a lasting effect on US law and policy by fast-tracking their Supreme Court nomination to confirmation prior to the election. I will go into more detail about the crucial timing of this later. Trump’s nomination was Amy Coney-Barrett; a law professor at Notre Dame University who he had promoted to the judiciary in 2017 in the Seventh Circuit of the appeals court. For context, this is a prestigious position in the judiciary, especially for someone who had never served as a judge before. As an academic at Notre Dame, Barrett is a member of the rising ‘originalism’ school of constitutional jurisprudence which aims to interpret the constitution as it was originally written and what the framers of it intended.
When Barrett’s name first entered the conversation of Supreme Court nominees, it was met with alarm by Democrats; both moderate and progressive. Prominent concerns have related to her position on abortion rights and the Affordable Care Act (popularly known as Obamacare) which stem from her previous publications as a professor. However, whilst facing questions from the Senate judiciary committee, Barrett insisted that she would not allow her personal views to interfere with her judicial position and essentially avoided many of the committee’s demanding questions. Notably, Barrett sidestepped questions regarding how she would respond to cases challenging the landmark case of Roe v Wade; the 1973 Supreme Court case which established a woman’s right to an abortion.
The New York Times reported that Barrett has connections to traditionalist Christian group called People of Praise which have a network of schools with strict guidelines stating that sexual relations should be restricted to married heterosexual couples. Addressing this, Barrett has stressed that her church affiliations and religious beliefs would not inform her judicial decisions. More generally, President Trump has stated on multiple occasions that his judicial nominees will work in favour of his agenda. In response, Barrett has emphasised her independence from the President. Clearly, there is a pattern where Barrett is unafraid of her personal opinions being known (or, rather, helpless to them being publicised), but is careful to separate these from her position as a judge.
Supreme Court nominations have a recent history of bitter political controversy. This goes back to 2016, when then President Barack Obama nominated Merrick Garland to replace conservative Supreme Court justice Antonin Scalia after his death in the February of that year. Almost immediately, Senate majority leader Mitch McConnell (who remains in that post following last week’s election) made it crystal clear that any Supreme Court nominee put forward by the Obama administration would not get through the Senate; something that is essential for confirmation. As justification, McConnell stated that the American people should have a say in the direction of the court, arguing that it was for the next president to fill the seat. As a result of McConnell’s (and other notable Republicans such as Ted Cruz) stark objection and with added backing from 11 other Republican members of the Senate Judiciary Committee, Merrick Garland’s nominations did not even see a single vote in the Senate. Fast forward four years, McConnell can be seen in the Senate arguing in favour of a Trump Supreme Court nominee prior to the election. Whilst serving as an analogy demonstrating the innately political nature of Supreme Court seats, this picking and choosing of valid political process also shows just how crucial that seat is in the progression of, not just a political party, but an ideology.
Barrett’s position as a judge is difficult to pin down. She indubitably falls within the conservative ideology and her confirmation has been a cause for celebration among conservative circles. On the other hand, if her recent statements are to be believed then we should not expect her personal political stances to influence her judgements in the Supreme Court. To put it simply; only time will tell.