Comment Writer Laura Bull discusses the situation which led to the confirmation of Amy Coney Barrett, linking it to that of the passing of Justice Scalia in 2016 and its consequences
Amy Coney Barrett was confirmed to the US Supreme Court on the 26th October, just one week before the US Presidential Election. This is in stark contrast to 2016 when Obama’s nomination for the Supreme Court was never even considered by the Senate.
On the 13th February 2016, Associate Justice Scalia died, a conservative justice. This meant that there was a spot to fill in the nine justices. Later that day, Senate Republicans issued a statement outlining that they would not consider any nominee put forward by Obama and the nomination of the next Supreme Court justice should be left to the next president. On the 16th March 2016, Obama nominated Merrick Garland, who the American Bar Association had unanimously rated ‘well-qualified’ (the highest rating). Garland was going to be a liberal justice. The Senate, which was controlled by the Republicans, refused to consider the nomination of Garland. This was obviously very controversial, and Garland’s nomination expired on 3rd January 2017, which was the end of the 114th Congress. On 31st January 2017, Trump nominated Neil Gorsuch, a conservative justice, who was confirmed by the Republican-controlled Senate on 7th April 2017.
The comparison of this situation to that of nowadays in 2020 is very telling. On 18th September 2020 Associate Justice Ginsburg died, a liberal justice, and with almost unseemly haste Trump nominated Barrett on the 26th September 2020. Democrats were opposed to the nomination, particularly since voting for the Presidential Election had already begun in some states. Nevertheless, on 26th October 2020, Barrett was confirmed by the Republican-controlled Senate. She is a conservative justice and there are concerns by the liberals that the six-three split of conservatives to liberals will negatively impact the US.
This was clearly a rushed move to ensure that a conservative justice would replace a liberal justice, no matter the result of the Presidential Election. This is even more controversial looking at the dates between the two cases. Scalia died nine months before the 2016 Presidential Election, whereas Ginsburg died less than two months before the 2020 Presidential Election.
Not only are the different circumstances surrounding the two nominations contentious, but the choice of Barrett has raised concerns. Barrett is part of the controversial Christian group, People of Praise, which has received wide criticism. They are accused of brainwashing their supporters and subjugating women who are told to ‘serve’ and listen to their spiritual heads, often their husbands. Members that have escaped have had to go through years of therapy to try and overcome their experiences. The Washington Post reported that Barrett has served as a ‘handmaid’ in People of Praise, a leadership position in the group. However, they do not hold the same authority as the male leaders due to the group’s patriarchal structure. Several parallels have been drawn to Margaret Atwood’s 1985 novel, ‘The Handmaid’s Tale’, popularised by the 2017 TV series, which follows the story of subjugated women in a patriarchy. Atwood tweeted that she was influenced by a ‘different but similar’ group for her book.
Barrett has said that she has not, and will not, force her own opinions onto the law and any rulings she makes. However, I think it is impossible to completely separate your own thoughts and judgements on any work you do, particularly if it is a contestable or controversial issue, which many of the Supreme Court cases are. It is only natural for your own bias and opinions to show through, at least in an underlying way. This is especially dangerous when so many American lives can be affected by the very powerful position of a justice on the Supreme Court. Specifically, I think women’s rights are at risk, in particular abortion. Barrett has not ruled explicitly on abortion before, but while on the appeals court, she assessed two abortion restriction cases. She voted in favour of a law that would require doctors to tell the parents of a minor wanting an abortion, with no exceptions. Barrett voted against striking down a law requiring the burial or cremation of foetal remains. While I cannot say for sure how Barrett would rule on abortion cases, I think it is clear that she could restrict abortion or potentially remove it as an option altogether, if the opportunity arose. I think Barrett’s past connections with People of Praise are deeply concerning as their prevailing influence may impact her rulings in cases.
I think that the political influence on the US Supreme Court is vastly underestimated by the American people, although acutely understood by the political elite. Not only does the US Supreme Court rule on political issues, but they are nominated by the President and confirmed by the Senate. The cases of Garland and Barrett show that whichever party controls the Senate has far-reaching powers to impact the makeup of the Supreme Court, where justices can make rulings that have profound influences and impacts, for decades to come.
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