Law

The nomination of Amy Coney Barrett to the US supreme court has been controversial in large part because Republicans are so obviously violating the standard they used to justify keeping Merrick Garland off the supreme court during Obama’s second term. But that hypocrisy has overshadowed the much more important matter: the substance of Barrett’s record, and her likely actions as a supreme court justice.Barrett’s rulings on the seventh circuit court of appeals show her to be someone who cares little about justice, and who doesn’t particularly value the interests of workers, immigrants and the poor. In case after case, she has found procedural technicalities to justify depriving people of their basic rights, and it’s clear that on some of the most important issues of our time, she would swing the supreme court in a direction nobody should want to see it go.Take policing. This year saw the eruption of massive Black Lives Matter protests all over the country as a reaction to police violence, with the deaths of George Floyd and Breonna Taylor outraging millions of people. But as a judge, Barrett has shown little interest in rectifying racial injustice. In the case of Torry, et al v City of Chicago, et al, she concluded that officers were reasonable in stopping and harassing a group of Black men even though there was absolutely no evidence that they had committed a crime. In Biegert v Molitor, et al, Barrett sided with police who shot a mentally ill man to death after his mother had called 911. In United States v Wilson, Barrett concurred with a decision that officers had reasonable suspicion to use force to detain a Black man when he ran away from them, because he had a “bulge in his pocket” and was in a “high-crime area”, in part because a “reasonable officer could infer from Wilson’s flight that Wilson knew he was in violation of the law”. And in Sims v Hyatte, Barrett indicated that she would have kept a Black man in prison who had been convicted on the basis of incredibly dubious eyewitness testimony.Barrett’s attitude has been the same on other issues. On immigration, she has indicated that she would defer to the executive branch’s absurd reasons for denying visas to lawful immigrants, without requiring the Trump administration to justify its decisions. She has ruled against prisoners, workers, debtors, and consumers, and there is reason to believe she would rule against the Affordable Care Act if the issue came before her.Barrett’s body of rulings is not that large, making it difficult to extrapolate how she would rule on important issues if elevated to the supreme court. But we have ample reason to believe that Barrett, a conservative Catholic, is hostile to abortion rights and might overturn Roe v Wade when she had a chance. In addition to being a conservative Catholic, Barrett is a self-described legal “originalist” who almost certainly believes Roe was a legally shoddy opinion. (Even Ruth Bader Ginsburg was not that confident in the legal grounds for the ruling.)There is one perspective on law that suggests judges should be evaluated on the basis of their “qualifications” rather than their “politics”. This point of view has led the liberal Harvard Law professor Noah Feldman to endorse Barrett, on the grounds that she is intelligent and experienced. Some of the same arguments were made about Brett Kavanaugh. If you think in terms of qualifications, it’s difficult to come up with good reasons to oppose conservative judges. After all, many conservatives went to top-ranked law schools and published journal articles. I suspect that this is part of why Democratic opposition to Barrett has not been as strong as it should be, and the focus has been on Republican hypocrisy rather than Barrett’s record. Slate’s Mark Joseph Stern even argues that Democrats have “privately given up” on opposing Barrett.But they shouldn’t. The fact that Barrett is “qualified” does not automatically entitle her to a supreme court seat – and her politics are enough to justify trying to keep her off it. Barrett’s views are almost certainly far to the right of the average American, and her elevation to the court will make that body even less representative of a complex and rapidly changing society. Judging is a political act; supreme court justices do not, as John Roberts famously insisted, merely “call balls and strikes” like neutral umpires. Instead, they impose their personal convictions on the country through rulings on questions that affect us all. Conservative judges tend to be less sympathetic to the relatively powerless, and this comes out in their rulings. If you care about protecting the legal rights of the powerless, you have good reason to oppose the confirmation of hardline conservatives onto the court no matter which law school they went to or how many years they have previously served on the bench.The primary reason Barrett needs to be opposed is not that she has been nominated during an election year, but that she has been nominated at all. Her record as a federal appeals court judge indicates that she will issue politically conservative rulings with harmful social consequences. Democrats need to unanimously oppose her and use all of the procedural weapons at their disposal to reduce the chances of her successful confirmation. More

Not much is certain about US politics these days. But if there’s one thing we know about Amy Coney Barrett’s confirmation hearings it is this: she will be asked about the role politics will play in her judicial decision making. If history is precedent, Judge Barrett will adamantly reject the supposition that her politics impact her adjudication. Starting with Chief Justice John Roberts – who, during his confirmation hearings, famously described the judicial role as one of a neutral baseball umpire “call[ing] balls and strikes” – it has become a commonplace for both liberal and conservative US supreme court nominees to declare that politics have no bearing on judicial decision making.In reality, there is no dearth of data measuring the extent to which judges decide cases based on political preferences. Consider the recent spate of cases concerning religious institutions which challenged coronavirus-related lockdown orders as violations of religious freedom. Freedom of religion and the future supreme court are of particular importance: the survival of many recent progressive initiatives – including the Affordable Care Act’s mandate requiring employers to provide health insurance that covers contraception, and laws prohibiting discriminatory treatment of LGBTQ people, to list just two – will rest in no small measure on courts’ interpretation and application of the “free exercise” religion clause of the first amendment of the constitution. Findings from a survey I conducted suggest that the outcome in some subsets of religious freedom cases track political affiliation to a staggering degree.I surveyed every merits-based federal court decision pertaining to a free exercise challenge to a stay-at-home order. The findings are staggering: 0% of Democrat-appointed judges have sided with a religious institution; the sizeable majority (64%) of Republican-appointed judges have sided with a religious institution; and 0% of Trump-appointed judges have ruled against religious institutions. In other words, all Trump-appointed judges have sided with religious institutions and all Democrat-appointed judges have sided with the state or city government. To be sure, my sample set – 81 judicial decisions – is not enormous. But the ability to predict to such a high degree the outcome of cases implicating the same free exercise question (in remarkably similar contexts) is illuminating. It suggests that Covid-19 has produced not only a partisan divide in the courts, but also that freedom of religion itself has become dramatically politicized.It was not long ago that religious freedom was considered a bipartisan issue, garnering near unanimous support on Capitol Hill. When the supreme court in 1990 drastically narrowed the meaning of free exercise, it was met with outrage from Republicans and Democrats alike. That outrage fueled the passage of the Religious Freedom Restoration Act (RFRA), which was designed to resurrect the religious freedom the court had eviscerated. RFRA passed the House unanimously and was approved in the Senate by a vote of 97-3.Such collaboration on religious freedom could not be imagined today. In the wake of Obergefell v Hodges, in which the supreme court legalized same-sex marriage in 2015, conservatives became alarmed at the prospect of America shifting sharply more “progressive” on cultural and social issues. Conservatives, especially rightwing Catholics and evangelical Protestants, rallied around the banner of religious freedom. They fought the Affordable Care Act’s contraception mandate and argued that the accommodations for churches in the Act were insufficient. Religious pharmacists also sought exemptions from state requirements that they dispense contraceptives.Yet by far the most charged battle over religious accommodation has concerned same-sex marriage. Conservatives worked hard at the state and federal levels to carve out religious exemptions through state statutes and proposed constitutional amendments. Liberals saw these exemptions as fronts to discriminate against LGBTQ individuals and women seeking contraception. As a result, Democrats in Congress are attempting to pass the Equality Act, a bill which would prohibit almost all discrimination based on sexual orientation and gender identity. A specific provision would pre-empt the possibility of RFRA being employed as a defense against a discrimination allegation. The Democratic congressman Jerry Nadler – who was a vocal advocate of RFRA two and a half decades ago – co-sponsored the new legislation.Religious freedom has undergone a cataclysmic change over the last decade. Whereas it was once seen as an American value on which Americans across the aisle could agree, now its polarization in society is mirrored in the judiciary. The root of the problem is inflexibility. Rather than take to heart the possibility that a cake shop owner truly feels inhibited by his religious beliefs to assist in the celebration of a gay marriage, advocates for gay rights – and the judges who agree with them – insist on being served by a religious baker, dismissing out of hand the legitimacy of his religious objections. Meanwhile, some religious employers demand to be exempted from merely having to notify the government that they will not provide conception healthcare under their insurance plans, claiming that even doing that violates their religious sensibilities. Neither side seems willing to give an inch, thus further entrenching a polarization that has now infected the judiciary to a staggering degree.To “save th[e] honorable court[s],” and the country, we must learn to listen to, and take to heart, the positions of others. What we need in a polarized country is not the idle fantasy that politics can or will never play a role in adjudication – it always will – but to strive for a world in which we believe in the power of encounter, of giving and listening to the other side, and of being open to compromise. More