By: Isabel Acevedo
After the passing of Supreme Court Justice Ruth Bader Ginsburg, on September 18th, 2020, a seat opened up on the Supreme Court. Republicans pushed for a nomination to take her place and soon President Trump produced one: Amy Coney Barrett, a conservative judge and favored pick. With her confirmation came controversy over her past rulings as well as opposition from the Democrats. As of October 27, 2020, Amy Coney Barrett has been confirmed to replace Ginsburg as the newest Supreme Court Justice. With her nomination, there has been heavy discussion about her forthcoming rulings as a conservative justice as well as the future of the United States Supreme Court.
Amy Coney Barrett graduated first in her class from the University of Notre Dame’s Law School. After graduation, she worked as a clerk for Justice Antonin Scalia, a conservative judge. Like Justice Scalia, Barrett considers herself an originalist, meaning she believes the Constitution should be interpreted as the authors intended for it to be written. She is also Roman Catholic, but maintains that her religious view does not compromise her political decisions. This background made her a strong pick as a conservative justice to replace Ginsburg and continues the legacy of three women on the Supreme Court.
The Supreme Court has a total of nine justices that hold life-long terms. Historically, there has been a long history of either a majority of liberal justices or a majority of conservative justices. Professor Keith Smith, Associate Professor of the Department of Political Science, at Pacific says that with both the loss of Ginsburg and the addition of Barrett, the court will move to a more “originalist, textualist approach.” With six out of nine justices leaning right, the court is currently a conservative majority. Since partisan majority is a normal circumstance, it was expected for President Trump to fill the seat with someone who follows the ideals of his own party.
However, because her confirmation was so close to the election, there was an uproar that Barrett was nominated weeks before Election Day, when the possibility of a second Trump term was still in limbo. In addition, in 2016, the Republicans in the Senate blocked President Obama’s nomination of Merrick Garland to fill Justice Scalia’s seat after he passed away. They gave the same reason as the Democrats said in 2020; Mitch McConnell, the Senate majority leader, stated that they did not want to nominate a new justice so close to Election Day. Professor Smith commented that “Mitch McConnell’s excuse for denying the nomination was unnecessary since it was constitutional. The Senate can choose to deny or accept a nominee regardless of party affiliation, as is their constitutional right. The Republicans made a disingenuous argument the first time and are now acknowledging their disingenuous argument.” Likewise, Professor Dari Tran, another professor in the Department of Political Science, says that “any party would want to take advantage of this relatively rare occasion to nominate a justice with shared ideological views.”
Amy Coney Barrett is not the first judge President Trump has nominated. Since his term as president, he has nominated and seated Justice Neil Gorsuch, Justice Brett Kavanaugh, and now Justice Amy Coney Barrett, something that is not easily accomplished in one term. Professor Tran states that Trump’s nomination of Barret would “appease a large part of his political base,” particularly because many recent court decisions have been “out of alignment with their socially conservative ideological views. [Such as] abortion rights established in Roe [v. Wade] to solidifying the right of same sex couples to marry at the federal level through Obergefell [v. Hodges].” In addition, Trump has also chosen to nominate relatively young justices which might lead to several decades of conservative ruling.
Shortly after President Trump’s nomination, there was a discussion about the concept of court packing. Court packing is a term referring to adding more justices to the Supreme Court, in this case, to balance out the majority of conservative justices. There has been debate about whether or not this would depoliticize the court, since justices may vote according to their personal political affiliations. Professor Smith explains why court packing would not depoliticize the Supreme Court. He states that “court packing would be a move to blunt the current status quo that adds justices to balance out the conservative justices on the court. It would only further politicize the court.” He does add, however, that it is only tradition to have nine justices on the court and not written in any law. Should there be a Democratic win, there could be a law passed that allows for more justices on Supreme Court.
According to Professor Tran, “The Supreme Court — the head of the judicial branch of the U.S. government — is theoretically supposed to be the least political branch intentionally structured to provide justices with non-elected, lifetime terms.” To achieve this, the solution may not be to add more justices to the court, but something that involves modifying our current system. Professor Smith suggest a possible solution could be to “limit the term of the justices which could, potentially, down the line, depoliticize the court.” Professor Tran provides another solution which would be to have new justices be selected by a panel of legal professionals or bipartisan legislators. Regardless of the solution, depoliticizing the court could be the answer to appeasing the heavily divided parties.
Finally, with the nomination of Amy Coney Barrett came accusations of her inadequate ability to be a justice due to her religious beliefs. Despite her denial, these accusations said that her faith had influenced her decisions on the cases she had ruled on as a federal judge. Justices like Amy Coney Barrett have long been criticized for having strong religious backgrounds. There are many who believe that Supreme Court Justices are to strictly interpret the Constitution and follow set precedents. Others say that justices have their own thoughts and beliefs which they should use in order to make the decisions that they believe best serve the country and align with the Constitution. Professor Tran agrees that is may be difficult to fully eradicate one’s decision making from their beliefs but states that “just as the elections officers who are tasked with counting ballots (even when those ballots don’t match with their preferences) are hired for their ability to impartially enumerate votes, so should justices be able to impartially uphold the law.”
Professor Smith makes the important distinction that people should not be criticizing Justice Barrett because she thinks differently or makes decisions that go against their own beliefs. He states that, “every single person makes decisions about what is right or wrong based on our personal beliefs. Yes, her judicial philosophy is strongly based on her life experiences and who she is. But asking her to let go of all of that so she adopts a philosophy that fits other’s views would be asking her to deny who she is and be anything other than human.”