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      Judges' politics absolutely sway how they decide cases. I crunched the numbers | Zalman Rothschild

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      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

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      Conservatives' assault on the supreme court is a judicial tragedy in the making | Shira A Scheindlin

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      On Saturday, Donald Trump nominated Amy Coney Barrett to become an associate justice of the supreme court, to fill the seat vacated by the death of Ruth Bader Ginsburg. In one stroke he violated long-held precedents regarding filling supreme court vacancies, undermined the confidence of the American people in the legitimacy of the court, and ensured that the court will turn back decades of progress in civil rights.This nomination is unprecedented. No justice has been confirmed to a seat on the court during an election year when a vacancy occurred after June. Yet when a vacancy occurred in February 2016 – an election year – the Republican majority in the Senate refused to even consider Barack Obama’s March nomination of Merrick Garland. In fact, when Antonin Scalia died, Obama waited a month to make a nomination out of respect for the mourning process. This time, Trump announced within a day of Ginsburg’s death that he would fill the seat immediately and then made his nomination just a week later.In a naked acknowledgment of his true motivation, Trump recently said that the country needs a ninth justice because the pending election could well end up before the court and a 4-4 court would be a bad thing. Yet, in 2016, the Republicans were content with a 4-4 court with an election around the corner. Indeed, Republicans threatened that if Hillary Clinton won the election, no new justice would be confirmed, leaving the court with only eight justices throughout her term.This election is already in progress with thousands (and soon millions) of Americans voting during what will inevitably be a highly contentious confirmation process. This process will inevitably affect the election and thereby politicize the supreme court as never before. The political branches of our government – the executive and legislative branches – are elected by voters; the court, on the other hand, is supposed to be non-partisan. While appointed by the president and confirmed by Congress, the justices are not beholden to any political party but rather to the rule of law.This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.Public confidence and public perception that the courts are non-partisan has erodedHer short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has written that Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia, when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen. More

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      The US supreme court has become a threat to democracy. Here's how we fix it | Sabeel Rahman

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      Just a few days after Ruth Bader Ginsburg’s passing, Donald Trump and Senate Republicans are moving quickly to appoint and confirm a replacement. A growing number of moderates, such as Eric Holder, are warning that should Republicans ram through an appointment, this fact, plus the deliberate blockade of Barack Obama’s appointment of Merrick Garland in 2016, would justify a new Democratic administration and Congress to add seats to the supreme court to restore balance.With voting already under way in the 2020 election, a rushed appointment and confirmation in this moment would be a clear partisan power play, and further collapse the legitimacy of the supreme court. But more broadly, the firestorm over Justice Ginsburg’s replacement is a reminder of how the modern supreme court has too much power in the first place. It is critical that our democracy reform agenda also consider how to reform the judiciary.Courts have too much power to radically remake our social and economic lifeFirst, courts have too much power to radically remake our social and economic life. If this latest Trump appointment goes through, the resulting 6-3 far-right majority on the supreme court would have the power and opportunity next month to invalidate the Affordable Care Act (in the middle of a deadly pandemic). They would be positioned to further gut voting rights, reproductive rights and rollback anti-discrimination protections for LGBTQ+ and Black and brown Americans, while further shielding police departments and immigration officials from accountability for racist state-sponsored violence against people of color. While courts have at times also ruled in more progressive directions to advance rights and equity, on balance this concentration of power without sufficient accountability is a threat to democracy – and to the ability of our communities to thrive.Second, courts today are a threat to democracy because of how they have been weaponized to skew political power and insulate extreme conservative coalitions from democratic accountability. Over the last decade, conservative jurists and their aligned partisans in the states and the Congress have combined to radically shift the terms of political power in the country towards corporations and away from working class communities and Black and brown communities in particular. More

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      Mitt Romney says he supports moving forward with Trump's supreme court pick – live

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