The judge who could change the face of the US

Swearing in: Barrett has now officially started her tenure as the 115th justice on the Supreme Court. © Getty

Is it right to call Monday “one of the darkest days in Senate history”? In the USA, the appointment of a right-wing Supreme Court judge days before a presidential election has sparked rage.

Chuck Schumer, the Democratic leader in the Senate, was incandescent. “I want to be very clear with my Republican colleagues,” he said. “You may win this vote... but you will never, never get your credibility back.” He added, “My deepest and greatest sadness is for the American people. It will go down as one of the darkest days in the 231-year history of the United States Senate."

Schumer was referring to the Senate’s confirmation of Amy Coney Barrett as a Supreme Court judge. Her appointment on Monday was a vital one, since it ensured a 6-3 majority of right-wing justices in the nine-person court. And because Supreme Court judges remain in office for life, that majority could be in place for years.

President Trump nominated Barrett because he believed she would help make key changes to the law – from banning abortion and same-sex marriage to restricting health care and immigration – while confirming gun rights and the death penalty. But it was not simply her views that Democrats objected to – it was the way her appointment had been pushed through at high speed just before an election. It was approved by 52 votes to 48, with only one Republican voting against it.

There was a similar situation when a Supreme Court judge died before the end of Barack Obama’s presidency. On that occasion, Republicans argued that it would be wrong for the outgoing president to choose a replacement. It would be more democratic, they said, to leave the decision to his successor. And that is what happened.

Schumer saw their refusal to apply the same principle this time round as breath-taking hypocrisy. His Republican opposite number, Mitch McConnell, replied that they were acting “entirely within the rules of the Senate and the Constitution of the United States”.

Schumer warned that the manoeuvre had caused huge damage to the parties’ relationship. And as compromises between the two are often needed to get legislation through, this could hamper the Senate’s proceedings for years to come.

But Barrett’s appointment may also have some very immediate consequences – above all, on the result of the election, since the Supreme Court rules on controversies arising from it.

Some states, for example, want all postal votes which are sent in before election day to be counted, even if they arrive after it. Trump opposes this, since he believes that Joe Biden’s supporters are more likely to vote by post than his own are.

Then, a week after the election, the Supreme Court will debate the Affordable Care Act. Introduced by President Obama, it has made healthcare available to millions of Americans who could not previously afford it. But Trump has vowed to repeal it – and in the middle of a pandemic, the repercussions could be enormous.

More controversially still, the court might overturn the Roe v Wade ruling which has made abortion available to many American women.

Is it right to call Monday “one of the darkest days in Senate history”?

Courting controversy

Some say, yes. An unassailably right-wing Supreme Court could change the whole face of America over the next few years, from a liberal democracy to a profoundly conservative one. Barrett’s appointment also emphasises how deeply polarised American politics have become: she is the first Supreme Court judge in generations to be appointed without the support of senators from more than one party.

Others argue that the court will not necessarily make changes for the worse. In any case, it is wrong to assume that Barrett will vote in a particular way. She has said that “A judge declares independence not only from Congress and the president, but also from the private beliefs that might otherwise move her”. And if Biden wins, he could increase the number of judges in the court to rebalance it.

You Decide

  1. Should a school’s head girl or boy be chosen by the head teacher, or by a vote of all the students?
  2. Should abortion be illegal in every country?

Activities

  1. Paint a portrait of Amy Coney Barrett being sworn in as a Supreme Court judge.
  2. Imagine that you are a judge ruling on one of the issues mentioned in this article. Write a speech to the court explaining how you have arrived at your decision.

Some People Say...

“A judge is a law student who marks his own examination papers.”

H.L. Mencken (1880-1956), American journalist

What do you think?

Q & A

What do we know?
It is generally agreed that abortion will be a key issue in the presidential election. For many Americans, it is the only issue, and they will vote for Trump because he opposes it, even if they think he is a hopeless leader. Joe Biden, who is a Catholic, personally disapproves of abortion, but knows that most Democrats support freedom of choice, so has said that it is a matter for the individual’s conscience.
What do we not know?
One main area of debate is around whether the president, or the Senate, should have any say in the appointment of judges. Many people insist that for a democracy to function properly, its legal system must be completely separate from politics. A judge should be chosen purely because he or she is the most competent person to interpret the law, and can be relied upon to do so regardless of his or her personal beliefs.

Word Watch

Incandescent
Extremely angry. The word literally means “glowing with heat”.
Gun rights
People convicted of serious crimes are not allowed to own guns. Barrett has argued that this should only apply if their crimes are violent.
Death penalty
Although Barrett has said that, as a Christian, she would not order the death penalty, she has not actually opposed it.
Manoeuvre
A way, often deceptive, of carrying something out. It is also a military term for battle practice.
Postal votes
Trump claims that they provide a huge opportunity for electoral fraud. But in the 2016 elections there were only four proven cases of this, three involving people who had voted for him twice.
Roe v Wade
A landmark case in 1973 which established that women had a constitutional right to abortion.
Rebalance it
Biden is not one of the Democrats advocating this, but has said that he would set up a bipartisan commission to look at reforming the court.

PDF Download

Please click on "Print view" at the top of the page to see a print friendly version of the article.