Every time we go through a Supreme Court nomination process, I find myself thinking of the final court scene of The Hurricane. While the film’s re-telling of framed boxer Rubin Carter’s fight for freedom is dramatized, the scene captures the importance of having judges who understand that interpretation of law can’t be separated from the pursuit of justice. Judge H. Lee Sarokin recognized that the law stipulated he was supposed to throw out evidence proving Carter’s innocence because it had not first been presented to a state court, but then made the decision to free Carter anyways, remarking “To permit convictions to stand, which had as their sole foundation appeals to racial prejudice, is to commit a violation of the constitution as heinous as the crimes for which the defendants were tried and convicted”. In this interpretation, the constitution is to be seen as vehicle towards justice, not a document that can be used to justify injustice.
Following in the footsteps of other conservative Justices, Amy Coney Barrett claims to be an “originalist”, who will make rulings strictly based on the text of the constitution, without letting her personal views have any bearing on her judgement. A document that is nearly 250 years old clearly does not offer concrete answers to every modern legal dilemma, and considering the fact that it was written by supporters of slavery, we should not look for it do so. If the constitution is going to remain the bedrock of our legal system, it should be because of its aspirational qualities, including the ones that its own writers failed to live up to. It is for this reason that the personal views of a Justice are so important — one can study the constitution and find legal justification for both sides of a case, but their ultimate ruling will rest largely upon their understanding of the injustices of the moment, and their concept of what must be done to bring American society closer to the aspirations described in the constitution.
In 1857, just four years before the Confederacy seceded and launched a civil war in defense of the practice of slavery slavery, America witnessed the consequences of having a Supreme Court comprised of Justices who were unsympathetic to the injustices of that moment. Dredd Scott was born into slavery, but petitioned the courts for his freedom after his owner died based on a statute that said a person could not be re-enslaved after residing in a free territory. Lower courts ruled both in Scott’s favor and against him before the landmark case wound its way to the Supreme Court, where a 7–2 majority ruled that African-Americans were not entitled to rights as US citizens, and that the Missouri Compromise that designated Northern territories as free states was unconstitutional. The merits of the legal argument that allowed the court to arrive at their conclusion is less important than their fundamental inability to recognize the injustice of slavery and the ways in which the practice stood in contradiction to the egalitarian ideals espoused in the constitution. It’s impossible to know exactly how the decision altered the course of history, but the court choosing to side with the slaveholding South rather than the abolition movement was a huge blow towards any hopes of a peaceful transition away from slavery, and helped ensure that the country stay on its path towards civil war.
In 2020, the specter of civil war once again hangs over us as we grapple with a polarized nation that is unable to agree on the injustices of our times. Whether or not these conflicts devolve into widespread political violence could easily depend upon decisions made by the Supreme Court in the coming years. We’ve seen the danger of a conservative Supreme Court in recent years, when they gutted the Voting Rights Act and recognized corporations as people — decisions that have debilitated our democracy and made it harder for the American people to move the country forward through legitimate processes. If the Supreme Court establishes a 6–3 majority of conservative justices who are unsympathetic towards the movements for justice in this moment, it will leave people with less avenues to create change through peaceful means.
The way Republicans are rushing through the process of confirming Amy Coney Barrett in the middle of an election is obviously a distressing sign of the breakdown of functional government, and her answers to questions during the hearings did nothing to dispel the fears that she will further politicize the court. Despite her frequent claims of impartiality, her testimony made clear that she prescribes to a right wing ideology, and knows how to cloak her partisan rulings in claims of “originalism”. Some of her most revealing exchanges came when Corey Booker questioned her about issues of racial injustice, an area in which her ignorance became apparent. When asked if she could list any books, studies, or law review articles she had read about racial disparities in the criminal justice system, she couldn’t name a single one. With this line of questioning, Booker was getting at one of the central problems with her nomination — how can she be expected to rule on the side of justice in cases involving racial discrimination when she has such minimal knowledge on the problem? The day before, Booker brought up a study outlining the extreme racial disparities in sentencing, which Barrett said she was not aware of. When he followed asked point blank if she believed there was implicit racial bias in the US criminal justice system, Barrett answered “in our large criminal justice system, it would be inconceivable that there wasn’t some implicit bias”. Translated, Barrett doesn’t see the current level of racial inequity in our criminal justice system, which she hasn’t bothered to do any research upon, as a problem that needs to be fixed. We live in a time where there is an unprecedented amount of academic research being published proving the existence of widespread systemic racism, a reality that is being denied by conservatives, including the President who appointed her, who has been labeling teachings about racism “un-American” and trying to make them illegal. Barrett is clearly well-read when it comes to legal history, but has made a conscious decision to not read anything about systemic racism, presumably because she is aligned with Trump and all the conservatives who prefer denying the existence of racism to learning about it.
Such an outlook will obviously has an effect on the way she rules in cases, which was demonstrated during another exchange with Booker, in which he asked her about a ruling of hers from last year involving a Black worker who filed a lawsuit claiming a hostile work environment after he was called the N word and fired. Barrett ended up dissenting against the others judges, writing “The employee couldn’t win simply by proving that the N word was uttered at him…He failed to show that the supervisor’s use of the N word against him altered the conditions of his employment and created a hostile or abusive work environment…Based on his subjective experience, this employee had no evidence that his supervisors were lashing out at him because he was Black”. Anyone with even mild awareness or sensitivity to the history of that word and the realities of racism would agree that the use of the word on its own constitutes a hostile work environment, but Barrett proceeded to give a convoluted legal justification for her dissent when Booker tried to point this out. Like the judges in the Dredd Scott case, she came to an unjust ruling not out of some principled adherence to the constitution, but due to a set of personal beliefs that precluded her from recognizing the injustice in front of her.
There’s no nice way to say it, but much of the conservative ideology is based on denial of reality, and Barrett treating such denials as legitimate was a theme throughout the hearings. While she tried to hide behind the “Ginsburg rule” that it is improper to forecast any future rulings, she ultimately ended up perverting it to avoid talking about her well-documented right wing beliefs. Kamala Harris used a line of questioning to show how ridiculous Barrett was being, getting her to agree that Covid-19 is infectious and cigarettes cause cancer before asking her to confirm that climate change is real, prompting Barrett to answer “You have asked me a series of questions that are completely uncontroversial like whether covid-1 is infectious, whether smoking causes cancers, and then trying to analogize that to exciting an opinion from me that is on a very contentious matter of public debate”. Harris’ answering “Thank you Judge Barrett, you’ve made your point clear that you believe it’s a debatable point” illuminated the way Barrett sees right wing ideas as legitimate, whether there is any evidence to support them or not. Donald Trump saying climate change and systemic racism aren’t real doesn’t change the reality that there is concrete evidence that both are real, but Barrett doesn’t see it that way.
As the hearings were taking place, people in black neighborhoods were waiting in long lines to vote, sometimes in excess of 10 hours. Despite this obvious and widespread voter suppression, Barrett refused to acknowledge that voter discrimination exists today. She also referred to homosexuality as a “preference”, and when called out for it, she apologized and said she didn’t mean to offend anyone, but repeatedly refused to acknowledge that people in the LGBTQ community do not choose their sexuality. Other easy questions with what should have been uncontroversial answers included the legality of voter intimidation, and whether or not Presidents can pardon themselves and if they have a duty to commit to a peaceful transfer of power. No matter how slippery Barrett tried to be with her answers, she ultimately betrayed the guise of impartiality that she tried to cling to by constantly refusing to rebuke absurd right wing ideas.
Looking back at Dredd Scott, we know that having Supreme Court Justices who are blind to injustice can lead to the nation’s highest court becoming an instrument of oppression. From Barrett’s testimony, it’s apparent that she is as blind to the injustices of this moment as the Justices in the Dredd Scott case were to the injustice of slavery in 1857. JFK once said, “Those who make peaceful revolution impossible will make violent revolution inevitable”, words that couldn’t be more relevant today. Just as the Supreme Court’s inability to stand on the side of justice helped make the Civil War inevitable in the 19th century, confirming Barrett and creating a 6–3 conservative majority could help make violent conflict inevitable in the 21st century.
