New Supreme Court Justice Amy Coney Barrett and the end of American democracy as we know it
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Today’s article is only about the Supreme Court and the confirmation of Justice Amy Coney Barrett. Due to the time in the country and the circumstances in which she has been confirmed, I believe this is of great importance to understand what is happening.
Written by King Williams
Edited by Alicia Bruce
Amy Coney Barrett is the ninth justice of the Supreme Court
The newly appointed ninth Justice of The Supreme Court, was appointed by a 52-48 margin on Monday and sworn in on the south law by Justice Clarence Thomas that same evening. What’s noticeable about this confirmation was that all Democrats and Republican Susan Collins voted ‘no’ on confirming Judge Barrett.
What is the Supreme Court?
The Supreme Court, founded in, 1789 is the highest court of the land, it is a by-product of the constitution of the US and the three-party system. It is the only court established by the US constitution and amendments 4-8 of the original ten amendments (aka The Bill of Rights) are regarding judicial issues.
Per the US Supreme Court’s own website:
The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
Since its founding, the Supreme Court has stood as the final stop on declaring the law of the land for the United States with the US Constitution as the backbone for these judgments. These rulings can be defined for generations, with cases that can be as monumental as the 1857 Dred Scott v. Sandford. A 7-2 decision stated the US Constitution did not cover African Americans for protections under the constitution whether free or enslaved because they were in fact not citizens of the US but imported property.
From the majority opinion on Dred Scott v. Sanford, p. 403:
This is certainly a very serious question,.and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our. duty to meet it and decide it.
The question.is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?
Also from that same opinion on p. 404:
The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing.
They both describe the political body who, according to our republican institutions, form the sovereigory, and who hold the power and conduct the Government through their representatives. The are what we familiariy call the "sovereign people", and every citizen is one of this people, and a constituent member of this sovereignty.
The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty?
We think they are not, and that they are not inciuded, and were not intended to be included, under the word ("citizen" is in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.
On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
You can read the entire 200-page decision here. The Supreme Court and the consequences of the decisions are the best examples of what power means in America—always at the whim of opinions and preferences of those who suffer the least from its decisions.
Why is the number of justices so important?
Via the Judiciary Act of 1789, the Supreme Court is required to have at minimum one chief justice and 5 associate justices (judges). The Supreme Court has ranged in size from 5 to 10 justices over its history, with the now established nine justices first happening in 1837, before peaking at ten justices during the Civil War. All judges serve for life unless for self-retirement or death. In addition, justices can be impeached, and if deemed guilty, removed from the court. Additionally, there are no formal qualifications for being a justice on the Supreme Court.
The role of a Supreme Court justice is to be an impartial representative and the last resort for those seeking justice through the judicial system. As a result, the decision on whether to take up a case for review, in addition to giving a ruling can shape near-permanent outcomes in the US. In doing so, as the times have gotten bigger, so have the Supreme Court’s decisions.
FDR and his presidency forever altered how we view the Supreme Court
It wasn’t until President Franklin Delano Roosevelt’s (FDR) run in the 1930s that such backlash to the court’s decisions emerged on a national level. This backlash was primarily from conservatives who opposed the government interventionist programs of the New Deals (yes, there were two) programs.
The New Deal was divisive among Democrats as the pro-business/pro-capitalist side of the party thought it was anti-competitive to private market interests. This resulted in two political factions, the first being The New Deal Coalition, a large voting bloc of various special interests (unions/intellectuals/liberals), and racial/ethnic groups (Jews/European immigrants/African Americans). These varied voting blocs would win every presidential election from FDR in 1932 until President Lyndon B. Johnson (LBJ) in 1964, becoming the formation of the modern Democratic Party.
A 1937 political cartoon with the caption 'Do We Want A Ventriloquist Act In The Supreme Court?' which was a criticism of FDR's New Deal, depicting President Franklin D. Roosevelt with six new judges likely to be FDR puppets. - via the History Channel website
On the other side, those smaller special interest groups opposing the New Deal were known as the unofficial but influential Conservative Coalition. This coalition was founded during the second term of FDR’s four presidencies including many hallmarks of today’s modern conservative movement. While producing the conservative manifesto, a precursor to many of the fiscal ideologies of today’s conservative movements.
Composed of conservative Democrats and Republicans, they began to retool ideological arguments against ‘big government’ spending, newly created regulatory agencies, as well as social safety nets created by the liberal FDR and the New Deal. As a result, conservatives in Congress and especially the Supreme Court became a thorn in FDR’s side for his entire political career. To counteract this, FDR attempted to pack the court to as high as 15 justices to counterbalance this but was not successful in doing so.
Who is Amy Coney Barrett?
Amy Coney Barrett is a former Notre Dame law professor turned judge and now-Supreme Court Justice. Barrett is the first Supreme Court justice since Edwin Stanton in 1869 to be confirmed without bipartisan support. Barrett was confirmed during a lame-duck session. A time period in which both the House and Senate take a break from deliberation on laws to campaign in elections or directly after an election. Barrett has only been a judge for as long as it takes to actually go to law school. Notably, she has never tried a case in court, only served in private practice for two years before becoming a judge, has never argued an appeal before any court, has served only three years as a judge, and despite all of this, she is now the ninth justice in the highest court in the country.
The future of the GOP is young, staunchly conservative, and often unqualified.
Barrett is unqualified to be on the Supreme Court but reflects a Trump/McConnell-era Republican party that has focused on power consolidation within the federal court system. This power is often filled by people like Barrett (48), often between the ages of 30 to 50-years-old, often with questionable qualifications.
This strategy is a fail-safe against the future United States that is more racially diverse, culturally diverse, and more liberal than the traditional Republican base. This court stacking is also happening in several other Republican-led states. This includes states like Arizona which added more state-level Supreme Court judges, Michigan which has used their state Supreme Court to undermine a Democratic Governor, as well as South Carolina and Wisconsin, which are both upholding voter suppression tactics. This also includes Georgia, where current Governor Brian Kemp is continuing the court stacking strategy of former Governor Nathan Deal with younger conservatives.
Why she’s problematic: Originalism
Barrett is an ardent practitioner of the slippery slope ideology of ‘originalism’.
Originalism is the idea that the US Constitution should be interpreted as it was written, in the time at which it was created. Originalism is something you can read in-depth from Barrett, in her own words, right here. But more importantly, originalism dates back to a time when the Constitution was interpreted as exclusively referring to white men, specifically those of elite classes. Among other things allowing for the protection of the institution of slavery and slaveholders’ rights, but not the enslaved. But I’m not the first person to point this out, as current Massachusetts Senator Ed Markey pointed out on Twitter two days ago.
Originalism is just judicial anti-Blackness
The ‘anti-woke’ and critical race theory backlashes are in part due to white, conservative resentment beginning in the aftermath of the Civil Rights movement in the 1970s. To understand the anti-progressive/liberal ethos of modern conservatism, including originalism I suggest you go back and visit my 9/5/2020 newsletter on the current day backlash to critical race theory by The Trump Administration:
Critical race theory is a theological construct that examines the intersections of race in society.
These challenges and criticisms of the law, in addition to its relation to political and economic power. Critical legal studies ideas were drawn from the experiences of several individuals who came of age during the Civil Rights movements of the 1950s-60s, the counter-cultural movements of the 1960s as well as the Black Power movements of the 1960s-70s.
This view often clashed with a growing libertarian ideology of the 1970s of free markets, codified conservatism, White flight, and rapid decentralization of two key tenets of White male-centered society: segregation and women’s rights.
Originalism is just a new name for legalized white supremacy emerging out of the 1980s. This ethos was popularized in part by former Justice Antonin Scalia, a mentor to Barrett. The problem with originalism is that it always focuses on the 1787 version of the US constitution and not the ratified 1870 version. That 1870 version expanded the power of the court as well as abolished slavery, additionally establishing the right to vote for Black men.
Originalism’s followers dismiss the seventeen other amendments to the US constitution, with a focus solely on the interpretations arriving from the first 10 amendments (aka The Bill of Rights). This notably does not give rights to African Americans (see the Dred Scott decision) nor gives women the right to vote as they were not the intended recipients of the original draft of the Constitution. Originalism’s ideological framework is a way to circumvent many of the social justice, labor, and civil liberties granted via the expansion of rights by the Supreme Court during more liberal political eras. Originalism is instead a legalistic ideological framework for restricting and/or abolishing those gained rights, a crux of modern conservatism.
RBG not retiring in 2012 is half of how we got here
Ruth Bader Ginsburg (RBG) electing to not retire in 2012 when Obama was in the midst of winning a second term, as well as the then-Democratic-controlled Senate, is part of why we are in this mess. Justice Ginsburg was 80 at the time and was urged to vacate her seat again in 2013 in order to make room for a younger justice. Ginsburg declined.
From an August 24th, 2013, New York Times article on the non-retirement of RBG:
“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.
Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.
Then RBG passed on September 18th of this year…As a result, what came next has been one of the biggest come-ups in political history, as the Republicans seized on the opportunity created by RBG not retiring eight years ago.
The Republicans have no shame and immediately pounced on the death of RBG
Swiftly after Ginsburg’s death, McConnell announced that the Senate will be taking hearings on the floor on nominations for the Supreme Court. That announcement came less than two weeks after President Trump already made an announcement of twenty names to fill a potential Supreme Court vacancy. The Trump administration had already previously named more than forty people to fill a potential vacancy on the Supreme Court by 2017. Two of those names would become eventual justices, Justice Neil Gorsuch and Justice Brett Kavanaugh. With the passing of RBG and the swift action of McConnell in pushing through the confirmation of Judge Amy Coney Barrett in just 27 days, the Republicans have assured a conservative majority for decades within the nation’s highest court.
Mitch McConnell is the other half of how we got here.
Since the inauguration of President Trump in January of 2017, McConnell and the Republican Party have done everything they can to ensure that conservatives take over the federal courts.
Under McConnell’s leadership, the Republican-controlled senate has 1) reduced the number of Senators needed to confirm a Supreme Court justice from 60 to 51 (out of 100), and 2) confirmed hundreds of judges, many unqualified, to lifetime positions within the federal court system. This included a 2016 non-vote on centrist Obama nominee Merrick Garland, who was blocked by the McConnell-led, Republican Senate for over two hundred days after the death of Justice Antonin Scalia beginning in March of 2016. McConnell’s public statements cited the need for the 2016 election to take place first. Once President Trump was elected, this extra Supreme Court Justice pick was first used on staunch conservative Justice Neil Gorsuch in 2017 and then Justice Brett Kavanaugh in a very contested confirmation hearing in 2018.
Within three years of the Trump/McConnell era, the duo has appointed 1/4 of all federal judges as well as now 1/3 of the Supreme Court justices despite being a president who lost the popular vote. All while the number of lower court judges appointed by the McConnell-controlled Senate could increase by the end of this term for the Trump administration. If President Trump wins again, the number of Supreme Court justices could be as high as 7-of-9 being Republican-appointed by the end of his next four-year turn. This comes as the Clinton-appointed Justice Stephen Breyer (81) is the next likely judge to retire.
Conservative Non-profit, private foundations and think tanks have been used as vehicles for attacking the courts
Barrett is a former member of The Federalist Society, a far-right judicial organization focused on implementing extreme conservatism in the courts of the United States. She also has support from conservative judicial think tanks like The Heritage Foundation and prior to her nomination has been a vocal member of the Christian conservative legal movement.
For the last 40 years, the courts have been selectively and preemptively attacked by various conservative groups who have felt aggrieved by the societal gains of liberalism. These groups are historically a successor to the anti-New Deal/FDR regime of the 1930s-60s. These groups leading the attacks on the courts are composed of varying factions of anti-liberalism, anti-civil rights, anti-voting rights, pro-free market evangelists, anti-government programs, individualistic-minded, right-wing religious, and/or evangelical Christians.
Over the last few decades since the New Deal and especially the Civil Rights movement. These groups have formed various non-profits, think tanks, scholarship funds, media organizations, and lobbying organizations with the sole purpose of restoring conservative justice, a true America. Make America Great Again.
Reagan and the 1980s grew the influence of conservative organizations
Since the Reagan administration, these organizations found a larger foothold within the electorate. These conservative groups have done their best to abolish and/or drastically reduce the effectiveness of legal precedents that were meant to address societal inequities. This includes media and judicial attacks on affirmative action, ending welfare, and the voting rights act to name a few. Organizations like The Heritage Foundation, have for decades worked to not only produce judges but also, lawmakers, policy analysts, university professors, and economists. All these individuals with the explicit mandate to destroy these gains granted by the courts for marginalized communities.
From The New York Times, 7/8/2018 article on conservative political groups:
Since the 1980s, a network of activists and organizations has worked assiduously to reach this point, determined to avoid the disappointment they felt after Republican appointees like Earl Warren, William J. Brennan Jr., David H. Souter, Sandra Day O’Connor and Justice Kennedy proved more moderate or liberal once they joined the court.
One of the leading figures behind the effort was Ed Meese, who served as attorney general to President Ronald Reagan, two of whose appointees, Justices O’Connor and Kennedy, proved less conservative than supporters originally hoped…
…the Federalist Society, the Heritage Foundation, the Judicial Crisis Network, the Judicial Action Group and Mr. Levey’s Committee for Justice have for years sought to develop a new generation of younger legal conservatives who would go into government and fill out lower levels of the judiciary.
This has been a 50-year exercise in vengeance by those aggrieved from the civil rights era. The strategy of attacking the courts, especially the Supreme Court has worked tremendously, as Democrats have put up just four Supreme Court Justices on the US Supreme Court in the last 53 years, while the Republicans have confirmed ten.
There are more things to be on the lookout for with this particular court and Barrett.
Amy Coney Barrett can show up to work tomorrow if she wants to. But what we should expect from a 6-3 conservative Supreme Court with Barrett on the bench is her acting as a hedge against a renegade streak of opinions by Justice John Roberts. But don’t praise Roberts, he has spent his career dismantling voting rights.
Her rulings in the interest of corporate interests
Barrett has raised some watchdog flags for her rulings on several cases regarding corporations agreeing with them 76% of the time.
Trump v. Biden (aka Bush v. Gore II)
What’s even wilder is that now with the confirmation of Judge Barrett, she joins three former law clerks from the 2000 Bush v. Gore Supreme Court case. A case notably having to do with absentee ballots in Florida, eventually seeing a president elected [Bush] who did not win the popular vote. Those justices, Amy Coney Barrett, John Roberts, and Brett Kavanaugh, could swing the election to Trump should it come to it. Something Justice Kavanaugh has already alluded to.
Upholding Voter Suppression
Considering the previous 8-justice court, 5(Conservative)-3(Liberal) has already upheld voter suppression tactics in battleground states like Wisconsin, which was demanding in-person voting only, alongside South Carolina refusing some mail-in-ballots, and upheld a 2020 poll tax in Florida. This decision in Florida was notable as voters in 2018 choose to restore voting rights to 1.4m people without impunity, only to be circumvented by Governor Ron De Santis and the Republican legislature. This could also swing the election to President Trump.
Her thoughts on race are definitely anti-Black despite having Black children
Many will point out her thoughts on whether or not she would rule Brown v. Board unconstitutional..she did, only to re-state this is one of the few cases that were “super precedent” and be unthinkable to be overruled. Others will point to a case, in which she ruled that having a White employer calling a Black employee the N-word wasn’t grounds for creating a hostile work environment.
Her ruling against rape victim settlements and absolving police misconduct
So this is the doozy…in a case involving her brief time as a judge in the Seventh Circuit Court of Appeals, Barrett issued a rather shocking dissent regarding the case of a repeated series of rapes of a pregnant 19-year-old inmate by a corrections officer in Milwaukee. These rapes happened during the same era of oversight from ardent Black conservative and former Milwaukee Sheriff David Clarke.
Barrett reversed a $6.7m settlement and stated that the county was not responsible for the officer’s behavior. What’s notable is the same Seventh Circuit Court of Appeals where another Black woman, Honorable Myra Shelby was scheduled to be nominated to the seventh circuit in 2016. Shelby’s nomination was blocked by McConnell during his middle finger to Obama-era judicial employees. This position was later given to Barrett despite having no prior experience as a trial lawyer or judge.
She has major cases already to rule on
Next is a series of rulings aimed at weakening previous court rulings, upholding the Trump administration, and/or striking down a series of laws that have been contested by conservatives for years.
Fulton v. City of Philadelphia - November 4th
This case is about re-instituting religious discrimination primarily against LGBTQIA individuals by religious institutions that receive taxpayer dollars. This comes as foster care agency Catholic Social Services, which lawfully discriminates against groups based on same-sex relationships and/or religious affiliations. Justice Barrett is a vocal opponent of same-sex marriage and the transgender community. But alongside justices Gorsuch, Kavanaugh, and Thomas could begin the process of stripping away those rights to LGBTQIA individuals
California vs Texas - November 10th
The big one. On November 10, the courts will decide the legality of the Affordable Care Act (aka Obamacare) being one of the first big decisions by Judge Barrett. That potential ruling would strike down the legality of Obamacare as well as potentially end both the expansion of Medicaid and re-instituting the ability for healthcare companies to deny healthcare coverage to those with pre-existing conditions. What this means long-term is at 20 million people would be immediately out of coverage for healthcare should this be ruled unconstitutional.
What can the Democrats do?
This is the real feet-to-the-fire moment for the Democratic Party. The Democrats face an insurmountable battle against the Republicans currently with Dems needing to outright dominate this electoral cycle to counter the last four years of President Trump. In addition to a now 6-3 conservative majority Supreme Court. In order to fix the problem with lifetime judge appointments, you would have to fix Article III of the constitution concerning term limits. Which is hard for anyone to change and would require the Dems to take all three branches, plus get at least 60 Senate votes to do it. The other would be to weaken the power of the courts…but that would be a gain for the Republicans in part because it would finally complete the long-held desire for local control and a weakened federal judicial system.
The most logical option would be to stack the courts.
Should Biden win, in addition to the Democrats taking both the House and the Senate, they should. But that won’t be easy as a group of Republican Senators including Marco Rubio (FL), and Lindsay Graham (SC) has introduced a bill to block this from happening. But considering the Democrats’ options, there may be little choice outside of impeaching those justices, which is the least likely to happen due to the potential blowback from voters. This is something that Mitch McConnell is betting on. The problem with court stacking is that it becomes an eventual back-and-forth of adding new justices. But at this point, it may be worth trying.
The long road to justice is before us unless the court blocks it.
-KJW
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