On one level, I suppose, Supreme Court Justice Amy Coney Barrett is as entitled as her senior colleague Stephen Breyer to talk sanctimoniously about the purity of heart that goes into every ruling and opinion by every member of that august bench. But the circumstances of Barrett’s remarks (as reported by the Associated Press) on the subject of the perception of the Supreme Court as partisan make them especially gag-inducing: “Barrett said the media’s reporting of opinions doesn’t capture the deliberative process in reaching those decisions. And she insisted that ‘judicial philosophies are not the same as political parties.’”
On this last claim, it’s more than a little germane that Barrett was speaking at the University of Louisville’s McConnell Center, the legacy institution of the hyperpartisan wire-puller who introduced her, Senate Minority Leader Mitch McConnell. Ol’ Mitch, of course, is the proud author of the scheme that politicized the Supreme Court confirmation process to an unprecedented degree: the refusal to act on former President Barack Obama’s March 2016 nomination of Merrick Garland.
It’s also relevant that Barrett accepted two lifetime appointments to the federal judiciary from former President Donald Trump, the great scofflaw, who was more nakedly political and transactional in his treatment of judicial nominations than any president in history. Aside from believing the Constitution gave him “the right to do whatever I want,” Trump specifically promised the anti-abortion movement he would deliver a Court that would abolish any constitutional right to have an abortion; Barrett’s own nomination was widely hailed in conservative circles as redeeming that pledge definitively (her selection was viewed as “a home run by conservative Christians and anti-abortion activists,” two categories of people tightly aligned with the Republican Party these days).
And speaking of abortion, if Barrett was so worried about perceptions of the Court as lacking independence and integrity, she might have refused to support an unsigned order issued without oral arguments in a case that essentially abolished abortion rights, at least temporarily, in the nation’s second-largest state, validating the vigilante enforcement scheme of the Republican-controlled Texas legislature. It was the eagerness of the five conservative justices to give the GOP and the anti-abortion movement this victory, without waiting to deal with the Mississippi case challenging abortion rights the Court is due to hear in the term that begins next month, that outraged so many people. As Chief Justice John Roberts noted in his dissent from the order, the Court should have put the Texas law on hold long enough to rule on its constitutionality or, failing that, to make a more general ruling in the Mississippi case. Using the shadow docket to shut down legalized abortion in Texas was an act of extreme provocation that could not help but call into question the Court’s impartiality, and Barrett is smart enough to understand that.
Her broader complaint, that “judicial philosophies are not the same as political parties,” is technically true, but she is aware of the parallel polarization that has turned the legal profession into warring camps aligned with the two major parties, particularly on the conservative side, in which the Federalist Society all but controls the vetting of GOP federal-court nominees. And on the constitutional law of abortion, which is so prominent at the moment thanks to the Court majority’s handiwork in the Texas case, partisan polarization is very nearly absolute (at least among Republican and Democratic elected officials). If that were not the case, it is very unlikely this particular young justice would be on the Court at all.
So Barrett should leave the pious remarks about judicial independence to others, or at least deliver them at a time and place where she risks being struck by lightning for hypocritical self-righteousness, which is an abomination to the Lord.