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America’s tarnished Supreme Court

Chris Patten
Filed on October 27, 2020 | Last updated on October 27, 2020 at 12.07 am
US President Donald J. Trump announcing Judge Amy Coney Barrett as his nominee for Associate Justice of the Supreme Court of the United States on September 26, 2020, in the Rose Garden of the White House.

(AC NewsPhoto / Alamy Stock Photo)

For a democracy to survive, prosper, and set a worthy example for others to follow, it must be led by men and women of integrity and honesty.

Born in 1944, I grew up in a world largely made — and made pretty well — by America. The post-war settlement established institutions, global rules, and an alliance of free societies that enabled most of us to thrive in peace.

There were mistakes, of course, with the Vietnam War being a prime example. Yet despite some strategic errors, the world’s open societies fared well and generally adhered to their stated principles. Through what Harvard University’s Joseph S. Nye, Jr. calls “soft power,” America consistently won the argument in favour of the rule of law and liberal democracy. When given a free choice, most people chose these values over the alternatives.

I was thinking about this worthy tradition as I watched this month’s US Senate hearings to confirm Amy Coney Barrett to the Supreme Court. Listening to the proceedings, I found myself thinking that, whatever our failings in Britain (there are plenty, and the number has ballooned under Boris Johnson’s premiership), at least we do not need to know what political opinions our judges hold. Does the head of the UK Supreme Court favour gay marriage or protections for abortion? No one would dream of demanding a response to such questions before deciding whether a judicial appointee is qualified to serve.

I have no reason to doubt Barrett’s abilities. Like me, she is a Catholic, which should not be a barrier. Yet I do have considerable misgivings about her judicial philosophy and the particular manner of her appointment — and on the latter issue, she should agree. On the jurisprudential question, Barrett is a disciple of the late Supreme Court Justice Antonin Scalia, meaning she is an “originalist” who tries to approach the law through the eyes of those who drafted the US Constitution more than 230 years ago.

The real-world implications of originalism were particularly stark in a case before the US Supreme Court last year. A condemned murderer, Russell Bucklew, had challenged the method by which the state of Missouri would execute him. He suffered from a rare disease that had left him ravaged by blood-filled tumours, and physicians had warned that one of the drugs in the lethal-injection mixture could cause these to burst, causing him to drown in his own blood.

This did not happen when Bucklew was executed, but the danger was there when the Supreme Court considered his appeal. Bucklew’s lawyers argued for death by other means, on the grounds that the proposed method could violate their client’s Eighth Amendment prohibition of “cruel and unusual punishment.” When the Court’s conservative majority rejected his appeal, it argued that those who drafted the amendment in 1791 had in mind punishments like disembowelment, dismemberment, or burning at the stake.

Never mind that in 1958, then-Chief Justice Earl Warren argued that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Since Barrett will join a bench that is already majority Catholic, she and her colleagues might want to reflect not just on Warren’s words, but also on those of St. John Henry Newman, who was canonised last year: “To live is to change, and to be perfect is to have changed often.”

In any case, it is not so much Barrett’s legal opinions that should concern those who believe in the rule of law and its central place in an open society. Rather, the problem is that Barrett is being installed on the Court in a manner that will undermine its integrity. The Court is at severe risk of being fatally corroded by “dark money,” a point that was outlined in rich detail during the confirmation hearings by Sheldon Whitehouse, a Democrat from Rhode Island.

Like all of US President Donald Trump’s judicial nominees, Barrett was selected by the Federalist Society, a conservative organisation that exists solely to fill federal appointments with likeminded “originalists.” The group is heavily bankrolled by private and corporate money, and thus is almost certainly advocating for specific corporate and private interests (its members generally oppose environmental regulations, to take just one example).

“Dark money” is allowed to play such a prominent role in the US political process, partly because in the infamous 2010 decision in Citizens United vs. FEC, the Supreme Court’s conservative majority decided that rules limiting independent political donations are a violation of the First Amendment right to free speech. Deep-pocketed lobbyists and special interest groups have enjoyed a bonanza ever since. Moreover, since Trump took office, he and his fellow Republicans in the Senate have stacked the federal judiciary with more than 200 conservative judges. (It is worth noting that among those chosen for appellate courts, not one is black.)

What sort of liberal democracy with a commitment to the rule of law allows such open corruption of its judicial appointments and political system more broadly? From partisan bad faith to the flood of secret money that secures undue influence, the United States has adopted the standard practices in a banana republic.

This is not to question Barrett’s integrity. But, surely, she knows that Trump would not have appointed her unless he was confident that she would help to overturn former President Barack Obama’s signature health-care legislation. After all, she is already on record criticising Chief Justice John Roberts for his failure to dismantle the law on a previous occasion.

Mitch McConnell, the Republican Senate majority leader who has taken a wrecking ball to America’s reputation for democratic standards and consensual politics, has put all business aside in order to ram through Barrett’s nomination before the US election on November 3. Perhaps suspecting that Trump will lose, he does not want the appointment to appear any more illegitimate than it already does.

McConnell, of course, is the one who refused even to hold hearings for Obama’s nominee to fill the seat vacated when Scalia died in early 2016, 269 days before a change of administration. Barrett’s presence on the bench will inevitably be tainted by the hypocrisy and political trickery that put her there.

For a democracy to survive, prosper, and set a worthy example for others to follow, it must be led by men and women of integrity and honesty. McConnell’s unctuous casuistry represents precisely the opposite. America’s commitment to the rule of law is being tragically tarnished by what is happening to the Supreme Court on the eve of the election.

Chris Patten was the last British governor of Hong Kong and a former EU commissioner for external affairs. —Project Syndicate





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