• C.R.R.S.S

How not to Choose (a) Justice

The Politicization of U.S. Supreme Court and the Slow Erosion of American Democracy


- Eugenia Crosetti - Senior Advisor, Gender Equality


“I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our President. For the country, it could be four years. For the Court, it could be – I don’t even want to contemplate that”


These were the words of Justice Ruth Bader Ginsburg soon after the end of the 2015 term, when she expressed public opposition to Trump’s candidacy for the 2016 United States presidential election. It was not by chance that RBG draw a connection between Trump’s potential presidency and the future of the Supreme Court in the long term. Considered that she, Justice Antony M. Kennedy and Justice Stephen G. Breyer were all approximately 80 years old at the time, and with one of the nine Supreme Court’s seats already vacant after the death of Justice Antonin G. Scalia in February of 2016, RBG understood that the next president would likely appoint up to four justices. Given the fact that Supreme Court seats are lifetime appointments, Donald Trump, if elected, would have reshaped the Court for at least the time span of a generation.


Four years later, Justice Ginsburg’s prophecy, expression of sharp political far-sightedness, seems to have been fulfilled with her death. On October 26, President Trump got his third nominee to the Supreme Court, Judge Amy Coney Barrett, confirmed after the already controversial appointments of Justices Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Such a dramatic shift of the U.S. Supreme Court to the right, especially with Barrett’s rushed confirmation - the closest ever to a presidential election - represents a further step in the process of politicization of the Court, which in the last decades has progressively been transformed by Republicans into a conservative political tool.


To understand why and to what extent the U.S. Supreme Court can be considered a political body and instrument, and which consequences arise from its current and future conservative configuration, is fundamental to fully grasp that the choice of Supreme Court’s justices has lately been characterized by political unscrupulousness, partisan interests and hypocrisy. In other words, by injustice.

US Supreme Court Justices / 2018


The U.S. Supreme Court as shaping policy while being shaped by politics


The Supreme Court, namely the highest tribunal in the U.S. federal judiciary, has authority of constitutional interpretation, meaning that, through the decisions on cases and controversies it accepts to hear, it can invalidate legislation or executive actions which, by the Court’s judgment, conflict with the Constitution. The decisions of the Court are final, and therefore are not reviewed by any other tribunal, differently from any other court in the Nation. Moreover, since the Court is not bound by its own precedents, it has the faculty to overturn them, and it often does. As a consequence, the Supreme Court makes or creates law in almost all its cases, especially when it is applying a clause of the Constitution to facts and circumstances that its shapers could not have envisioned centuries ago.


For instance, in the landmark decision Roe v. Wade (1973) the Supreme Court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment, thus effectively legalizing the medical procedure nationwide. Similarly, the decision Obergefell v. Hodges (2015), which struck down states’ same-sex marriage bans as unconstitutional, was partly based on 14th Amendment’s Equal Protection clause, originally meant to stop states from discriminating against black people.


Resistance to the idea that politics is performed in the Court stems from a distinctly American commitment to the Rule of Law and to American constitutional democracy. Ideally, justices selected for the Court are expected to make decisions about law irrespective of their own political creed and without regard to politics, as their role of guardians of the Constitution should be above any political partisanship. But this, as Lincoln Caplan argues in his introduction to American Justice 2016: The Political Supreme Court (2017), has never been a reality. Justices nominated by different Presidents and confirmed by a Senate with changing majorities must be considered as political moves of life-long significance and consequences, mainly on the basis that their mandates stretch far beyond those of the people who nominated them.

Roe V Wade/ 1973


In fact, while the Supreme Court belongs to the federal judiciary, which should obviously not be affected by politics, at the same time its decisions overlap with the work of the more overtly political branches of the U.S. federal government, the legislative and the executive. Moreover, since the Court is among the government institutions designed to distribute and exercise power, and since its justices, when interpreting the Constitution, might also be drawing from their own political and personal values, it seems difficult to consider the tribunal completely separated and detached from political dynamics, or worse, strategies.


In recent years, and especially with the conflation of Trump’s presidency with a Republican-led Senate, the politicization and partisan polarization of the Supreme Court has been conducted together with a deeply antidemocratic instrumentalization of its function. If one considers the outline of the Court after Judge Barrett’s confirmation, with a 6-3 conservative majority, it is undeniable that in the last four years Trump’s politics has been shaping the Supreme Court, and that the latter, on its side, will shape governmental policies through its decisions for a period going far beyond Trump’s presidency. Due to the current conservative ideology of the Court, liberals fear that Republicans will use the tribunal as a political instrument to achieve goals that they would not have the means to achieve otherwise, especially with regards to women’s rights, reproductive rights, LGBTQ+ rights, healthcare and immigration.

A reflection on President Trump’s nominee to the Supreme Court might illuminate the ways the tribunal has been appropriated by Republicans, and how the judiciary seems to have become a place where to pursue a conservative, if not reactionary, social agenda.


Instrumentalizing the selection process: the promises behind (and beyond) Amy Coney Barrett’s confirmation to the Court


Back in February 2016, after the death of conservative jurisprudence giant Justice Antonin Scalia, U.S. Supreme Court’s democratic grounds shook violently as Senate Majority Leader Mitch McConnell refused to even hold hearings for Merrick Garland, who then-President Obama had chosen to replace Scalia. Arguing that a Supreme Court Justice should not be put forth by an outgoing President in an election year, McConnell and the Republicans provided a precedent that they have now ignored in order to get Judge Amy Coney Barrett confirmed just a week ahead of Election Day. The GOP’s double standard with Obama and Trump’s appointments would already be enough to shed a light on how flawed and politicized the selection process has become.


Harvard professors Steven Levitsky and Daniel Ziblatt, in their 2018 work How Democracies Die, argue that democracies must certainly be grounded on a solid constitution aimed at restraining abuse of power, but that they work best if reinforced by unwritten democratic norms, such as the mutual toleration between competing parties and forbearance, or the idea that politicians should exercise restraint in deploying their institutional prerogatives. Lately, and especially since 2016, it seems that Republicans have yielded to the temptation of using their temporary control of institutions to maximum partisan advantage.


The confirmation of Judge Amy Coney Barrett is perhaps the tipping point of the Republican instrumentalization of the U.S. Supreme Court and, consequently, one of the lowest moments in the recent history of the tribunal. Not only is this appointment in conflict with American democratic bases in the ways it was made possible, but also for the reactionary promises that her confirmation is simultaneously fulfilling and making.


On the one hand, it materializes what Trump promised to Christian conservative groups and anti-abortionists during the 2016 election. In the episode of The DailyThe New York Times’ daily podcast hosted by Michael Barbaro – titled A Historic Opening for Anti-Abortion Activists, Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List for more than 25 years, illustrates that the appointment of pro-life Supreme Court justices was among Trump’s commitments in exchange for economic and political support. This means that Trump’s electoral campaign in battleground states was backed up by a conservative group, among others, that considers abortion as a violence from which unborn children and women must be protected rather than a civil right. Thus, it sounds hard to believe that the appointment of Amy Coney Barrett, who has publicly advocated against abortion rights, was dictated only by her “unparalleled achievements as scholar and judge” and her “unyielding loyalty to the Constitution", in the words of President Trump.


Protests outside the U.S Supreme Court, Picture Credit: Saul Loeb/AFP/Getty Images


On the other hand, Barrett’s confirmation is also a future-oriented promise of conservative judicial decision-making, especially in terms of reproductive and LGBTQ+ rights. She can in fact be considered as the ideological antithesis of her predecessor, Justice Ruth Bader Ginsburg, who spent her whole career as a champion of women’s rights and in support of gender equality. Just like in 1991 Justice Thurgood Marshall - civil rights activist and first African American to serve at the Court - was replaced by Clarence Thomas, now considered as the most conservative member of the Court, RBG has been replaced by someone whose identity might be seen in line with that of her predecessor, but whose judicial philosophy and ideology will likely undermine many of the decisions Justice Ginsburg was pivotal in making. Far from paying respect to the legacy of Thurgood Marshall and Ruth Bader Ginsburg, their replacements display the identity categories of race and gender in the attempt to embody a superficial continuity with their predecessors. But just like being African American does not guarantee a progressive judicial attitude, being a woman does not automatically result in a safeguard of women’s rights and gender equality.


Hearing of Hon.Amy Barrett


Equal (in) Justice Under Law: envisioning equal treatment of unequal people

The youngest nominee ever to the Supreme Court at the age of 48, and only the fifth woman to serve as Supreme Court justice, Amy Coney Barrett incarnates a new kind of conservatism. She has the credentials and experience of the likes of traditional secular conservative lawyers, but she is at the same time representative of the emergent Christian conservative legal movement. A devout Catholic and former member (though not publicly displayed) of People of Praise - an orthodox, evangelical-style ecumenical community with strict view of human sexuality and gender roles – the intersections between her faith and her career are evident since the choice of Notre Dame Law School over an Ivy League institute. At Notre Dame, the moral and ethical dimensions of the law were explored, crucifixes were held in classrooms, and lessons were at times opened with a prayer.


Her extreme and unabashed religiousness, together with her textualist and originalist approach to the Constitution, is what threatens to make her a leading voice in overturning landmark decisions which safeguard reproductive and LGBTQ+ rights. Her past already speaks for itself. During her time as Notre Dame professor, she joined the anti-abortion Faculty for Life group. In 2006, she signed her name to a newspaper ad against “abortion on demand” and for the “right to life from fertilization to natural death”. In 2013, for the 40th anniversary of Roe v. Wade, she addressed Notre Dame students about abortion, arguing that life begins at conception. Strategically however, when questioned on her position on Roe v. Wade during her confirmation hearings, she answered evasively claiming that a nominee should not comment on potential cases, although she did admit that she does not view Roe v. Wade as a “super-precedent”, namely a case so well-settled that its overruling is to exclude.


Amy Barrett Sworn in as Supreme Court Justice


Similarly, Barrett’s confirmation poses a threat to more recently achieved LGBTQ+ rights. After all, she has worked for the Alliance Defending Freedom (ADF), the largest and most extreme anti-LGBTQ+ legal organization in the United States. The U.S. LGBTQ+ community already expressed concerns over Barrett when she was nominated to the U.S. Court of Appeals for the Seventh Circuit in 2017. At the time, Lambda Legal brought together other 26 national LGBTQ+ organizations to oppose her confirmation, claiming in an opposition letter that her “religiously-infused moral beliefs would inform her judicial decision-making about issues of concern to lesbian, gay, bisexual and transgender people and everyone living with HIV”. The letter goes on underlining that Barrett would clearly reconcile her traditional binary views about marriage and family with the Supreme Court’s decision Obergefell v. Hodges, on which the constitutional right to marriage equality is based. Or further, her views about the complementarity of men and women with the Supreme Court’s decision Price Waterhouse v. Hopkins, which prohibited employers from discriminating due to gender-based stereotypes. If in 2017 there were doubts on whether Barrett’s judicial decision-making would be bound by Supreme Court precedent, her current confirmation to the Supreme Court puts the very precedents at stake. On September 25, Lambda Legal affirmed that “Judge Barrett is simply not someone who can be trusted to affirm the right of all people''


The inscription above the main entrance to the Supreme Court Building reads "Equal Justice Under Law". It is a promise of equality, of judicial impartiality and of respect. But if one considers the contemporary political instrumentalization of the Court and the extremism of its brand-new nominee the words acquire ironic, and unsettling, undertones.

Eugenia Crosetti, is from Turin (Italy). Eugenia is the senior Advisor for the Gender Equality Mandate of CRRSS. After graduating in Foreign Languages and Literatures at the University of Turin, She got a Master's Degree in Literary Studies (track: "Literature in Society") at Leiden University, where she had the chance to reflect on contemporary political and social issues through the critical lens of literature.

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