Attention has recently been drawn to Justice Amy Coney Barrett in a somewhat favorable light because of her concurring opinions and statements appearing to downplay the cavernous division on the SCOTUS between the “conservative” bloc and the liberal justices. Much is made of her comments departing from the partisan majority that either questions the soundness of the ruling’s rationale or criticizing the majority for reaching beyond what was necessary to decide the case.
At the same time, she has spoken critically about the
liberal justices who have spoken out about the ill-conceived, poorly grounded,
and sometimes disastrous opinions the GOP bloc has handed down. Her contention
is that the justices are in agreement more often than the minority criticism
would suggest. Statistically and technically, that is accurate. But it is also somewhat
dissembling. Liberal justices have actually been quite restrained and strategic
in their dissents, often declining to issue a public statement of criticism or
even acceding to opinions of the majority when their disagreement has no hope
of swaying the GOP bloc. It certainly could not credibly be claimed that when the sharp public dissents
have come that they were in minor or trivial cases. To be fair, Barrett has
shown herself a better justice that was expected and certainly superior to her contemporary
Trump appointees Kavanaugh and Gorsuch. She has pointed out ungrounded or unreasonable
departure from precedent and procedure by the majority used to reach a
contrived result. At least in that sense she has shown some respect for SCOTUS
as an institution and for her professional responsibility as a sitting justice.
Barrett treads upon thin and hypocritical ground, however,
when she seeks to downplay the importance of differences among the justices,
claiming that “we all wear the same color black robes.” Cute phrase, but it fails to acknowledge that
those robes can cover up huge and important differences in what lies
underneath. The false equivalency argument that Kagan, Sotomayor, and Brown
could ever be equated with Thomas and Alito in character and competence is truly
laughable. And in another comment, Barrett disgraces the chair that her
predecessor sat in. Ruth Bader Ginsburg would never have argued that her female
colleagues should shut up and sit down or try to mollify an errant male
dominated majority. In response to minority dissents regarding the presidential
immunity ruling, Barrett said:
“The Court has settled a
politically charged issue in the volatile season of a Presidential election.
Particularly in this circumstance, writings on the Court should turn the
national temperature down, not up,” Barrett wrote. “For present purposes, our differences
are far less important than our unanimity: All nine Justices agree on the
outcome of this case. That is the message Americans should take home.”
Wrong. It is not the job of any justice to ignore the law,
precedent, Constitution, and well-being of the nation and seek to mollify or
blunt criticism of an errant majority that has both strayed and done serious
damage to the country and respect for SCOTUS as a fundamental institution. It
is sexist and demeaning to suggest that the minority dissenters, all women,
should play the stereotypically feminine role of minimizing and smoothing over
major problems. They have no duty to play the role of apologists for the
majority and its erroneous and politically motivated ruling.
As such, the role Barrett is playing may be less that of a
peacemaker, than that of a quisling. She may be seen as one seeking to portray
an alliance with other women justices while voting consistently to undermine
the principles and policies that would protect constitutional protections
citizens should be entitled to enjoy. The Dobbs decision is one obvious
example. Barrett, because of her wealth, status, and personal choices, has
multiple children, natural and adopted. But when faced with a decision that
would preserve the right to make such choices on reproduction and family,
Barrett stood with the conservative majority to carry out the GOP agenda of
denying those rights to other women. While Barrett may spout words of supposed
collegiality, if I were one of the minority SCOTUS justices, I would not turn
my back on her for a minute.
It is understandable that there should be an attempt to “buff
up” the image of Barrett, since none of the other justices in the majority have
shown attributes, character, or performance that is respectable ands
praiseworthy. Barret has been silent on issues of corruption on the SC OTUS and
failure of some justices to recuse themselves even when clearly required by law
and jurisprudence to do so because of conflict of interests. But it is also
fair to say that not too much can really be expected of Barrett, since even
when she may side with the minority justices, they still are defeated by the
five other conservative justices.
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