The 48-year-old Circuit judge, who is President Donald Trump’s nominee to fill the vacancy of late Justice Ruth Bader Ginsburg, is exactly the opposite of all that RBG stood for. Her ideological views, be it on immigration, abortion, various Amendments, transgender rights or campus sexual assaults prove that she is a staunch conservative. Sadly, her decisions would influence the jurisprudence of the US Supreme Court for decades to come. PRASHANT PADMANABHAN examines the issue.
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Life is often not fair. Take the nomination of 48-year-old Amy Coney Barrett, a Circuit judge, by US President Donald Trump, to the US Supreme Court. That seat fell vacant recently with the demise of the much-respected Justice Ruth Bader Ginsburg due to cancer. With the 2020 US presidential elections just 37 days away, it would have been in the fitness of things for Trump to defer this nomination and hand it over to the next President, who has to take oath on January 20, 2021. But it was not to be.
This has, naturally, led to concerns about the propriety and morality of the outgoing president thrusting his nominee just before elections. Questions are also being asked about the ideology and commitment of Judge Barrett, which will influence crucial issues before the Supreme Court, including the presidential election itself. Also, why is there such haste in this appointment?
Ironically, Senate Judiciary Committee Chairman Lindsey Graham, who now supports President Trump’s nomination, had said in 2016: “Use my words against me. If there’s a Republican President (elected) in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let the next president, whoever it might be, make that nomination’.” This was when President Barack Obama had proposed Merrick Garland to the Supreme Court.
Judge Amy Coney Barrett was trained by the Federalist Society for Law and Public Policy Studies. An idea was proposed by lawyer (later Justice of the US Supreme Court) Lewis Powell and nurtured by jurist Robert Bork and Justice Antonin Scalia to conserve the American economic system from “the attacks of consumer, environmental and labour movements”.
Trump’s other two nominees, Neil Gorsuch (54-45 votes) and Brett Kavanaugh (50-48 votes) were confirmed by the Senate by invoking the nuclear option, wherein a simple majority (instead of 60 votes) is enough to get through confirmation. With 53 Republicans and 47 Democrats (including two Independents), the nuclear option may be invoked in the case of Judge Barrett also. Senate Judiciary Committee, headed by Republican Senator Lindsey Graham, will hold confirmation hearings for four consecutive days beginning October 12, 2020. The alacrity shown in appointing a US Supreme Court judge for life before the election date is a dangerous precedent.
Judge Barrett was in the legal team of George W Bush, helping him win a case against Al Gore in the Supreme Court regarding a recount dispute in Florida’s 2000 presidential election. Some others in that team–Chief Justice John Roberts and Justice Brett Kavanaugh (as lawyers then)–are already in the Supreme Court today. When asked whether he will peacefully transfer power if he loses the election in November, Trump said: “I think this will end up in the Supreme Court, and I think it’s very important we have nine justices.”
As reported in The New Yorker, Democrats and Republicans have already filed dozens of law suits in an attempt to define the rules in November. Is it unfair to make a comparison with the case that was decided 20 years ago in Bush v. Al Gore?
Favourite of Conservatives
Judge Barrett was trained by the Federalist Society for Law and Public Policy Studies. An idea was proposed by lawyer (later Justice of the US Supreme Court) Lewis Powell and nurtured by jurist Robert Bork and Justice Antonin Scalia to conserve the American economic system from “the attacks of consumer, environmental and labour movements”. Justice Barrett who clerked under Justice Scalia is a staunch conservative and an originalist like him. No wonder, she is the favourite choice of conservatives.
So, what are her ideological views as reflected in her decisions in the Circuit Court? After all, these would influence the jurisprudence of the US Supreme Court for several years, possibly decades ahead.
Abortion
Indiana (Judge Barrett’s home state) laws requiring funerals be held for foetal remains after an abortion and banning abortions even for developmental disability of a foetus were held unconstitutional by a three-judge panel in 2018. Judge Barrett was among four judges who wanted the full court to weigh in and suggested that the laws might be constitutional.
Justice Barrett who clerked under Justice Scalia is a staunch conservative and an originalist like him. No wonder, she is the favourite choice of conservatives.
If the historic judgment which upheld women’s reproductive rights and bodily autonomy, Roe v. Wade is to be ever overturned, “it would be better if it were not done by only male justices, with every female justice in dissent”, reported a conservative viewpoint. It is possible that the conservatives find that definite vote against Roe v. Wade in Judge Barrett. Trump had commented that overturning Roe v Wade is “certainly possible” with Amy Coney Barrett.
Second Amendment: Right of people to keep and bear arms
This right is protected under the Second Amendment to the US Constitution. In her dissent in the 2019 gun-rights case of Kanter v. Barr, Judge Barrett argued that a conviction for a non-violent felony (in this case, mail fraud) shouldn’t automatically disqualify someone from owning a gun. In her dissent, she wrote that her colleagues were treating the Second Amendment as a “second-class right”. This is a phrase used by Justice Samuel Alito and more recently, Justice Clarence Thomas and other conservatives to complain that the Supreme Court has shied away from recognising gun rights.
Eight Amendment: Prohibition against cruel and unusual punishment
In 2019, the Seventh Circuit Court by a majority held that the Eighth Amendment’s prohibition against cruel and unusual punishment protected people in prison from correctional officers’ firing “warning shots” into a cafeteria. Judge Barrett in her dissent wrote: “The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance.… In the context of prison discipline, however, ‘deliberate indifference’ is not enough.”
Title IX suit
Title IX is a federal civil rights law reads: “No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
If the historic judgment which upheld women’s reproductive rights and bodily autonomy, Roe v. Wade is to be ever overturned, “it would be better if it were not done by only male justices, with every female justice in dissent”, reported a conservative viewpoint. It is possible that the conservatives find that definite vote against Roe v. Wade in Judge Barrett. Trump had commented that overturning Roe v Wade is “certainly possible” with Amy Coney Barrett.
In Doe v. Purdue University, Judge Barrett’s ruling turned a sex discrimination statute on its head. She wrote a unanimous three-judge panel decision in 2019 making it easier for men alleged to have committed sexual assaults on campus to challenge the proceedings against them. This decision treats the Department of Education’s efforts to enforce survivors’ Title IX rights as evidence of anti-male bias.
Transgender Rights
Judge Barrett’s opinion on a textual reading of the statute that Title IX protections do not extend to transgender Americans is worrying. She refers to transgender women as “physiological males”. “People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present,” she opined.
In Cook Cnty. versus Wolf, Judge Barrett was the lone dissenting voice in favour of the Trump administration’s policy of denying entry to immigrants who may in the future require public assistance. She alone thought it was lawful for the Trump administration to apply the “public charge” rule to deny green cards to such people.
Immigration
In Cook Cnty. v. Wolf, Judge Barrett was the lone dissenting voice in favour of the Trump administration’s policy of denying entry to immigrants who may in the future require public assistance. She alone thought it was lawful for the Trump administration to apply the “public charge” rule to deny green cards to such people.
Ironically, Judge Barrett who is Trump’s nominee to fill the vacancy of Justice Ginsburg is exactly the opposite of all that RBG stood for.
(Prashant Padmanabhan is an Advocate in the Supreme Court of India. Views are personal.)
