If You Don't Want To Be Seen As a Partisan Hack...

So I saw that Supreme Court Justice Amy Coney Barrett was trending this morning. Not something I expected to see so I checked in to find out why, and - hoo-boy! Well folks, in case you haven’t seen this yet, this is a doozy. And for those who have, I am sure you are doing some form of slapping your face in disbelief. 

You see, it seems that the Justice had some thoughts that were bothering her, so she found the perfect venue to express them. I will let Piper Hudspeth Blackburn of the Associated Press set the scene in what could easily be a shooting script for an episode of The Twilight Zone. (full article here)

“Supreme Court Justice Amy Coney Barrett expressed concerns Sunday that the public may increasingly see the court as a partisan institution. 

Justices must be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions, since judges are people, too,” Barrett said at a lecture hosted by the University of Louisville’s McConnell Center. 

Introduced by Senate Republican leader Mitch McConnell, who founded the center and played a key role in pushing through her confirmation in the last days of the Trump administration, Barrett spoke at length about her desire for others to see the Supreme Court as nonpartisan.”

I mean introduced by McConnell? At the McConnell Center? Complaining about the impression that the current Court might be seen as partisan? This is about as rich as a New York cheesecake drenched in chocolate sauce with a scoop of ice cream, but with none of the sweetness and all of the heartburn. 

It doesn’t take a PhD in American history to understand how soaked in context this all is. Merrick Garland. Presidents choosing justices after losing the popular vote. Decisions to gut voting rights, gun control, protections on the environment, and now abortion. Barrett replaced Justice Ginsburg in the waning days of the Trump presidency. All of this set the stage for where we are today. And all of this was orchestrated by McConnell himself in the most brazen of partisan string-pulling. 

The lady doth protest too much, methinks. 

Once again, however, we have a case where the quiet part is said out loud. I mean, if you don’t want to seem like a partisan hack, perhaps you can speak through jurisprudence and your rulings and not in a venue where Mitch McConnell was your opening act. 

One person who I am sure was not pleased with this morning’s headlines was the Chief Justice, John Roberts. He’s a savvy enough political being to understand the optics of this are about as subtle as an elephant in an elevator. Roberts has been attempting to swing the Court far to the right. But he has done so with an aw-shucks affect, disarming smile, and just enough siding with the liberals to gain effusive media coverage as a moderating voice that softens much of his true trajectory. Now he has to deal with the mask being torn off.

Of course for anyone paying at least somewhat close attention, that mask had been off for a long time, if it was ever on. But one definitely gets a sense that something big has shifted in our politics around the Court. After decades of the Right running against the bogeyman of judicial overreach, we have a case of the dog catching the car. The not-so-secret truth is that much of what the most reactionary members of the Court want seems not to be very popular. They might appease their base, but they’re also powering the opposition. The threats these justices pose are not theoretical, and they are no longer being obscured through complicated legal frameworks. Millions of people can feel their rights being taken away. 

It is tempting to look at Justice Barrett’s remarks and be gobsmacked at the echo chamber she must live in to think that this event, blessed by McConnell himself, would have her intended effect. But I think there is another way to read this. There is an old saying that “Supreme Court Justices read newspapers too.” And that suggests they can be swayed by public opinion. The uproar over the Texas abortion case has certainly penetrated the marble halls of the Court and those who work there. Now I don’t think justices like Alito or Thomas give a whiff. But Barrett, who knows? And playing armchair psychologist for whatever that’s worth, Justice Kavanaugh seems like someone who wants to be liked and considered reasonable. 

More generally, however, the Court is now a topic of great concern on the political left. In the past it hasn’t generated a lot of passion or votes for Democrats. We will have to see if this time is different. In that way Barrett did the country a service with her remarks. They clarify the stakes perfectly. One of the strategies of McConnell was to stock the entire court system with enough young, far-right judges that they can undercut Democratic election victories and policy objectives for decades. In that way they are the ultimate Deep State. But they also need legitimacy, especially if they get more and more out of step with the will of the majority of Americans. Ideas which once seemed radical, like expanding the courts, term limits, and other checks on judges, are gaining traction even with more moderate voices in the Democratic Party and are being treated seriously by the press. 

Is this pure partisan politics? Of course it is. Now that we got that straight, let’s see what the public has to say about it. 

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