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Mainstream, VOL LVIII No 46, New Delhi, October 31, 2020

Barrett Confirmation: Heralding A Dangerous Turn To Right In U.S. Supreme Court | Vijay Kumar

Saturday 31 October 2020

by Vijay Kumar

The confirmation of Amy Coney Barrett as an Associate Justice of US Supreme Court in the wake of vacancy arising after the death of Justice Ruth Bader Ginsburg in September 2020 marks the advent of brute dominance of right after long time. The replacement of one female judge by another, however, is not without poignant touch of irony. Justice Ginsburg was quintessentially liberal, staunchly feminist and principled abortionist, whereas justice Barrack is confirmed atavistic, obdurately dogmatic and passionately anti-abortionist. No wonder, women groups came on the street and registered their protest. The essence of life term nomination for the Supreme Court was encapsulated by me in a tribute, I wrote for Barrack Obama, when he demitted Presidency, and one paragraph from that piece offers an apercu and deserves reproduction:

“That legacy of American President is sustained by the President’s appointee in the Supreme Court for the simple reason that one can be President for maximum two terms, lasting eight years, whereas the Supreme Court Judges are appointed for life. The example of Antonin Scalia, appointed by the President Reagan, automatically crops up in mind. The Reagan Presidency lasted for eight years, but Antonin Scalia continued to further his conservative policy till his death in 2016. Since the appointment of judges in the Supreme Court is for the life, the power to appoint becomes a matter of chance. Obama was lucky to appoint, first, Sonia Sotomayor, a woman and Hispanic and, subsequently, another woman, Elena Kagan. These two Obama appointees are expected to carry forward his policy till they are in Supreme Court. Obama got another opportunity towards fag end of his Presidency, when most conservative Justice Antonin Scalia died, but Obama‘s attempt to fill up vacancy was blocked by Republicans.” (See Mainstream issue dated 28th Jan 2017)

From middle of nineteenth century till the first half of Presidency of Franklin D. Roosevelt, the American Supreme Court was bastion of conservatism, indeed reactionary in the extreme, sustained by judicially active and politically conservative justices. The highly emancipatory judgments written by Justice Oliver Holmes were, by and large, dissenting judgments. The spirit of laissez-faire pervaded the jurisprudence of the Supreme Court and it’s extreme manifestation surfaced in Lochner case (1905) in which the hours of work fixed by the act of Congress was struck down on the ground that it was repugnant to freedom of contract. Justice Oliver Holmes wrote a powerful dissent. Inspired by contractism as guiding thread, the Supreme Court shot down many progressive economic legislations. Confronted with virulently anti-welfare trend of the Court, the President Roosevelt responded with the threat of “Court packing”. This threat had its impact and the Supreme Court started tilting towards moderation and liberal view. But the decisive turn for progressive jurisprudence started with appointment of Earl Warren as Chief Justice by the President Eisenhower in 1953.

The Warren Court started with almost revolutionary judgment by outlawing segregation of Blacks and White students in schools in “Brown vs. Board of Education” in 1954, universally regarded as a cause celebre. The Supreme Court under the stewardship of Earl Warren went on to hand down many progressive judgments ranging from civil rights to electoral reforms and equality and fairness with great emancipatory import. The Warren era was golden phase of the American Supreme Court. Earl Warren demitted office of Chief Justiceship in 1969, but his glorious legacy lingered and continued to inform the jurisprudence of the Supreme Court even in the time of his successor Warren E Burger , appointed during the presidency of Nixon whose court handed down one of the momentous judgments by granting right to pregnant women to terminate her pregnancy in celebrated “Roe vs. Wade” in 1973. It is the liberating jurisprudence of Roe vs. Wade judgment that rattled the conservatives, and all the republican Presidents from Ronald Reagan onwards did their best to get it overturned, but they have not succeeded.

Given the regressively conservative background of Amy Coney Barrett, the legacy of Roe vs. Wade has become shaky. The confirmation of Barrett has tilted the balance in favour of right after 1930s by 6 to 3. As Barret is confirmed at relatively young age of 48, (given the life tenure of Justice of US Supreme Court), she will have unusually long time at her disposal to dismantle the progressive legacy through her insistence on textual interpretation and passionate advocacy for originalism. The tilting of balance in favour of conservatives by confirmation of Barrett may neutralize the progressive march of constitutionalism in last 80 years.

Though there have been instances of justices shifting from right to centre, it is doubtful that Barrett and senior-most Associate Judge Clarence Thomas (only Black Justice) would become centrist. This is particularly when Republicans have embraced neo liberalism and discarded the “civic virtue” and ethics which were hallmarks of classic republican like Abraham Lincoln. The possibility of transformation from right to moderate appears remote in the event of Trump succeeding in coming election. When the President Reagan nominated extremely conservative Robert Bork in 1987, it triggered vociferous opposition, and his nomination was defeated on the floor of Senate by bi-partisan voting by democrats and republicans. Chastened by this defeat, the President nominated Anthony Kennedy, and though Kennedy was also rightist, his nomination passed through the Senatorial confirmation, and he shifted towards centre and throughout his career regarded as voice of moderation by earning the sobriquet of “swing vote”. Justice Anthony Kennedy retired in 2018, but he steered himself clear of Pigeonholed ideology. There have also been instances of justices restraining theirs precedent-thrashing impulses and present chief justice, John Robert, an appointee of Bush jr, epitomizes this. Another, though drastic, measure to neutralize the right ascendency in the Supreme Court is through increase of strength from 9 to 11 in the event of Joe Biden winning the Presidency and democrats securing majority in the Senate. The most salutary way to restore balance, in my view, is to do away with life time appointment and fix the tenure lasting from 10 to 15 years with fixed retirement age. That will give fair and almost equal opportunity to all the presidents to fill up the vacancy in the Supreme Court.

The most distressing aspect of the Barrett confirmation is the timing. She has been confirmed just a week before election. When the most conservative justice of Supreme Court, Antonin Scalia died in January 2016 – full ten months before the election, the nomination of Merrick Garland by President Obama was opposed tooth and nail by republicans on the highly specious plea that vacancy should not be filled in the election year. The vacancy in court after the death of another female Judge Ruth Bader Ginsborg arose merely one and a half month before the election, and the Republican Party, in the crassly hypocritical act, departed from the convention set up by itself and went on to nominate, and eventually confirm, Amy Coney Barrett. This departure from settled democratic norms is extremely subversive for democracy and liberal value. In a recent well-received book “How Democracies Die”, Steven Levitsky and Daniel Ziblatt, both professors of government at Harvard University, have argued that more than law and constitution, the democratic norms and convention act as guard railing against the undemocratic decision and any deviance from these norms and conventions would result in backsliding of democracy. The confirmation of Barrett represents an ominous moment for American democracy and constitutionalism.

(Vijay Kumar is an advocate at the Supreme Court of India)

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