Despite hypocrisy, coronavirus regulations, and the absence of several GOP Senators who have been diagnosed with COVID-19, the US Senate is moving ahead with the process to install Amy Coney Barrett on the Supreme Court.
Ahead of the start of the hearing on Monday, October 12, Barrett has released her full opening statement online. In addition to family details, and boasting of her clerking under Justice Scalia, Barrett lays out her approach to the law:
Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.
When I write an opinion resolving a case, I read every word from the
perspective of the losing party. I ask myself how would I view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law? That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court.
These are nice-seeming platitudes on the surface. But they also dog-whistle to the scope of the ongoing Republican Culture War, which conservative Justices Thomas and Alito have already signalled towards. Barrett's explanation of her judicial philosophy tries to hide behind the veil of weaponized objectivity. She insists her job is to merely determine what the law says, and not to engage in issues like, say, marriage equality, or civil rights. But not engaging in those issues — and refusing to consider the full-scope of objective context when judging the word of the law — is itself a form of bias. Human beings bring their own perspective and experience with them when we interpret language. As much as one may claim they are being objective by, say, reinforcing entrenched power structures that are built on discrimination, that person's perspective is still skewed by their pre-existing assumptions and experiences. Even the choice to be a so-called Constitutional Originalist is still a form of bias, and thus, not objective, because it means you've already formed an opinion based on your personal perspective (like Scalia famously did all the freakin' time).
As a concrete example: Barrett believes that life begins at fertilization and that includes all non-viable fetuses grown in a lab through IVF. This will inherently bias her towards any decisions regarding abortion rights, such as the potential overturning of Roe v Wade. (See also: the fact that she conveniently committed her anti-abortion advocacy work from her nomination paperwork). She cannot be objective about abortion, any more than she can rule apolitically and objectively about corporate responsibility and climate change, in the face of a myriad of conflicting laws and actual objective science. Neither is she capable of making objective rulings about guns, particularly when you consider that the written word of law on the matter is inherently ungrammatical.
But by claiming the shield of "objectivity," however, Barrett can relinquish her responsibility even as she wields her power to selfishly reinforce her preferred social order. And that's how a minority group entrenched in power can "objectively" justify the abuses of a culture war.
Opening Statement at Senate Judiciary Committee Hearing [Amy Coney Barrett]
Revealed: Amy Coney Barrett supported group that said life begins at fertilization [Stephanie Kirchgaessner / The Guardian]
Image: Shealah Craighead / The White House (Public Domain)