On Saturday, September 26, Judge Amy Coney Barrett and her family visited President Donald J. Trump in the White House. In all likelihood, the day will be remembered for what happened later that week: the President and other top Republicans came down with Covid-19. It turned out to be an inauspicious day, and those photographs from the Rose Garden “superspreader” event will never quite look the same.
At the time, however, I was struck by something else from the visuals of the day: it was simply jarring to see Judge Barrett, a person of such apparent integrity and good grace, standing alongside the President.
And indeed, Judge Barrett’s nomination to the Supreme Court in the wake of Justice Ruth Bader Ginsburg’s death has brought one of the most contentious questions of modern constitutionalism to the fore: the relationship between personal morality and the law. Judge Barrett is by all accounts a devout conservative Catholic, and in recent weeks liberals and progressives have raised questions about the role her faith would play if she is seated on the court. Many were upset upon learning of Barrett’s statement that a “legal career is but a means to an end. . . and that end is building the kingdom of God.” In defense of Barrett, others were eager to point out that being guided by your faith hardly makes you a theocrat.
There are, to be sure, interesting questions lurking here–about the character of Barrett’s particular religious commitments, as well as about the relationship between an individual’s values and their interpretive preferences. But any focus on Barrett’s Catholicism–or, frankly, even on her jurisprudence– is to miss the moral and political forest for the legalistic and procedural trees. This is a rare instance in which focusing on a given nominee’s particulars is already too much of a concession, because the appointment shouldn’t be happening at all.
These events are not unfolding in the alumni lounge of Harvard Law School, or within the Twitter vacuum: it’s all happening amid major political turmoil and at a time of extreme civic distrust — a time of pandemic, of economic distress, of wildfires, of unprecedented unrest over racist state violence, and with a potentially volatile election on the horizon. The confirmation of Judge Barrett will only tear further at already fragile civic and institutional bonds. By accepting the nomination, made by such a president, Judge Barrett is taking an enormous step towards undermining the Supreme Court’s remaining legitimacy. These are the themes that Democrats on the Judiciary Committee should focus on during the hearings, with a view to having her step down. There is a lot more at stake here than ACA or Roe.
But let’s start there–or rather, let’s start by considering how a 6-3 court is likely to disrupt the constitutional order. The shift in the balance of power, from 5-4 to 6-3, is a dramatic one. With six conservative and three liberal justices, the least democratic, least accountable government branch would become even less representative of the American people. As Judge Barrett explained in 2016 about a potential Obama nominee to replace former Supreme Court Justice Antonin Scalia, this is “someone who could dramatically flip the balance of power on the court, it’s not a lateral move.” Regardless of where one comes down on Roe or other relevant cases, the fact that the newly configured Court would have the power–and possibly the will–to overturn so much settled law is a very real source of concern. As Chief Justice John Roberts put it in a report at the end of last year, America’s “strong and independent judiciary” is “a key source of national unity and stability.” It is unwise to introduce still more partisan disorder at a time of such extreme polarization and uncertainty.
Of course, the subtext here is that, for today’s Republican leaders, none of this is really about balancing powers or representing the people. Replacing Justice Ginsburg is the great prize of the Trump era, the move that will shift the Court away from Chief Justice Roberts’ wavering balance towards something much more staunchly conservative. It is the telos of a much larger campaign to rework the federal judiciary. The Republican Senate under Trump has all but abdicated the role of legislating–the nomination spectacle will, it seems, be happening in the absence even of an economic relief bill–but they have managed to install record numbers of conservative judges to the federal bench in a highly ideological, norm-busting way. Pretty much the definition of judicial activism is trying to accomplish through the judiciary what you cannot accomplish politically. Trump’s Republicans in the Senate have abandoned ideals of unity and stability, and seem almost entirely uninterested in legislating; the anti-democratic monkey-wrenching is the point.
Which brings us to the rank hypocrisy of Republicans betraying the precedent they set during the Merrick Garland nomination–which is also a major part of the political context, and which touches on the much larger matter of our collective character as a people committed to and bound by laws and norms. Justice Scalia died in February 2016 and Senate Majority Leader Mitch McConnell infamously refused, on democratic grounds (“the American people should have a voice”), to consider Justice Garland, President Obama’s nominee and a liberal moderate. This was some nine months prior to the election. Now the tables have turned, but this time the country is within mere weeks of a volatile election and faces other major destabilizing forces, as noted. In other words, now is a time when the 2016 argument makes real sense, but McConnell and the rest seem poised to confirm Trump’s very conservative nominee. It is an absurd and ugly reversal–plain as day, for everyone to see, and as such a deeply corrosive act. Why, after this, would Democrats ever trust their Republican compatriots again? Why, for that matter, would Republicans trust one another?
Then there are the other, less overt forms of Republican hypocrisy–other ways in which, under Trump, Republicans have degraded public trust and public discourse. Of course there is the far-right fringe, with its QAnon conspiracies and Proud Boys vigilantism–which is being normalized every day, and which destroys the very possibility of public truth. But the most serious and influential example of what I have in mind comes from a speech Attorney General William Barr gave to the Federalist Society last fall. Here’s how Barr used his power to claw at America’s civic bonds:
In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.
Conservatives, on the other hand, do not seek an earthly paradise. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing. This means that we naturally test the propriety and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?
For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy war, especially when doing so under the weight of a hyper-partisan media.
There is not really much to say here, as Barr makes the party line pretty clear, but two things are worth highlighting. First, a key dimension of civic health in a democracy is accepting the legitimacy of the opposition and the reality of alternating power. Even when, say, minority interests win out for a time through the counter-majoritarian design of the Constitution, there must still be some sense that– if not immediately now, then at least in some indeterminate future–the government acts in the name of, and the interests of, the people. In the course of just a few paragraphs, by presenting such a ruthless portrait of all liberals everywhere, Trump’s Attorney General made a mockery of those norms.
The second thing to note, especially given the subject of Barrett’s Catholicism, is that political discourse on the right is saturated with extremely charged anti-left rhetoric. In this realm, relatively mainstream conservative thinkers–and certainly more extreme ones–regularly equate liberal and progressive value systems with something like pseudo-religious fanaticism (the “it’s-like-a-religion-to-them” refrain). Often the claim is that liberals are perpetually engaged in some kind of overreach, the latent assumption being that liberal values have little role to play even in properly political domains. And so, while no one should assume that Barrett’s Catholic beliefs would interfere with her judicial rulings, the overarching double-standard here is plain. E.J. Dionne recently put the point as follows:
They ask us to accept that the only kind of faith that can never be questioned is the sort that leads people to support conservative policies and vote for Republican candidates. When it comes to other brands of faith (and especially to nonbelievers), it’s open season.
Barrett’s nomination process is taking place against a background of genuine intolerance and double-speak on the part of Republicans. It is happening against a backdrop of ugly and overt attacks by the President on Representative Ilhan Ohmar. A Barrett confirmation is bound to exacerbate and upset–not quieten or ameliorate–these tendencies. To put it another way, and borrowing from Barr, the “collateral consequences and the systemic implications” of all this are not good.
This brings us, at last, to the simple matter of Donald Trump’s character and what it means, and should mean, for the honor and reputation of Judge Amy Coney Barrett. Here again the matter is simple: the stench of Trump is thick. From the many allegations of sexual misconduct, to his hateful stoking of racial violence, to his efforts to undermine the legitimacy of the election, Trump has no concept of what it means to be a decent person–let alone what it means to partake in a constitutional democracy. Accepting a SCOTUS nomination under such circumstances, from such a man, is not something she will live down.
At the most serious level, this isn’t about any nominee’s religion, or about the virus, or about any specific law: it’s about the collapse of public trust, morality, and reason at the hands of a corrupt president, his party, and his administration. The question is about the integrity of the constitutional order itself.
Senate Democrats would be smart to focus on these deeper moral and political questions during the hearings. Bill Svelmoe–a history professor at Notre Dame–makes the argument compellingly here, and explains how such a strategy might be executed. When it comes to future hypotheticals, Judge Barrett will have reasonable-sounding, persuasive answers, but what will she have to say about the Trump administration’s flagrant lying and specific abuses of power? As Svelmoe puts it, Democrats should let Judge Barrett “use her supposed good character and keen legal mind against the administration that has nominated her.” They can begin by having her explain the purpose and meaning of the emoluments clause. They might venture into “Access Hollywood” terrain.
In the absence of such a focus on Trump and these deeper moral and constitutional questions, little good can come of the nomination process, which will upset the court’s balance at a time of terrible uncertainty and involves an entire party living out a flagrant collective lie. It will serve as yet one more stain on the collective conscience of Republicans, undermine the legitimacy of the Supreme Court, and further erode whatever civic trust remains in this country. It may well set off a spiral of reforms by Democrats–the end of the filibuster in the Senate, more seats on the Supreme Court–should they gain the opportunity come November. Such an eventuality would be hard to impugn.
Of course, at any point in the coming weeks, Judge Barrett could do something about all this. She could reverse course and stand down from the nomination. She could stand up before the American people and explain her difficult choice. She could make a statement about the import of the civic constitution, which is not just about the written word but also the latent agreements, assumptions, and norms that bind a people together–things like democracy, equal rights under the law, freedom of conscience and of association. A young Lincoln once spoke of how the greatest defense against political collapse was “the attachment of the people” to their institutional forms; he was speaking of the civic constitution.
It would undoubtedly take real courage, patriotism, and self-sacrifice for Judge Barrett to take such a step, especially given her strong Originalist/textualist bent. But it would be the kind of large, magnanimous gesture that could open the door to real constitutional healing–a straightforward repudiation of Trumpism and a public-minded act of faith towards a more decent American tomorrow.
By playing a part cast by Donald J. Trump, in a production so devoid of integrity, Judge Amy Coney Barrett turns her back on the constitutional project. A simple act of refusal, taken by a person of such dignity, could start the country down a path of renewal.
Photo Credit: The White House, Public Domain
Note: The original post mistakenly referred to Judge Barrett as Justice Barrett. We regret the error.