Amy Coney Barrett – Sheila Kennedy

The Age of Grievance

There are a number of ways to escape “the news of the day.” Suicide, of course; substance abuse (mostly booze), studied ignorance…I can’t be the only person who needs some respite from the daily reports of Trump damage, environmental despoliation, insane conspiracy theories and the like.

Recently, I’ve been escaping into fiction. Mostly science fiction and mysteries–guilty pleasures that are finally available to an almost-retired person. I’ve particularly enjoyed a series written by a Canadian writer, Louise Penny, who follows an Inspector Gamache through sixteen books. I was reading book number 8, when I came across an observation that explained not just crime, but political behavior. The Inspector was explaining motivation–and attributing much of it to fear.

Especially, he said, fear of loss.

Could there be a more apt description of the political insanity we inhabit? During the past four or five years, the word “grievance” has become an indelible part of our political discourse. It applies almost always to people who believe they are at the cusp of loss–loss of the world in which their particular identity dominates others. As I have often noted, research has established that “racial grievance” is the most reliable marker of Trump support.

Other research has found that certain Christians exhibit an almost hysterical fear that their “religious liberty”–defined by them as their right to prescribe the behavior of others– is slipping away. Linda Greenhouse, one of the most thoughtful observers of the Supreme Court, focused on that fear in a recent New York Times column. She wondered whether Amy Coney Barrett would join the “grievance conservatives.”

Greenhouse began by discussing the recent 5/4 decision exempting religious gatherings from COVID restrictions, and noting that it was likely to be moot, since the restrictions had already been modified.

The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.

The embodiment of grievance conservatism is Justice Alito, who in a speech last month to his fellow members of the Federalist Society said that “it pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

Greenhouse pointed out how ironic this was:

Justice Alito is a member of a Supreme Court majority that during his nearly 15-year tenure has been more deferential to the demands of religious believers than any Supreme Court in modern history. Just this past summer, the court ruled that a state that offers a subsidy for private-school tuition must include parochial schools in the program; that religious organizations may exclude a substantial category of employees from the protections of federal civil rights laws under a “ministerial exception” that goes well beyond members of the ministry; and that employers with religious or even vague “moral” objections to contraception can opt out of the federal requirement to include birth control in their employee health plans.

As Greenhouse also reported, Alito and Thomas wrote “sympathetically in early October about Kim Davis, the Kentucky county clerk who refused for religious reasons to issue marriage licenses to same- sex couples.”

Since the two justices were neither voting to grant the appeal nor dissenting from its denial, their opinion was entirely gratuitous. They simply used the case as a platform to reiterate warnings about the threat to religion from official recognition of same-sex marriage.

Greenhouse is absolutely correct when she observes that what religious adherents want is not equal treatment. Equality is no longer sufficient. “Special treatment is the demand.”

There is also irony to this (quite correct) “special treatment” characterization. Back in the early days of the gay civil rights movement, religious figures hysterically objected to any grant of civic equality to members of the LGBTQ community, asserting that laws against discrimination weren’t equal rights, but “special” rights.

What these frantic warriors for “religious liberty” really fear is loss of their unearned privilege. And as Inspector Gamache understood, fear of loss can make people do criminal things.

Comments

Federalism On Steroids?

There are many observations we might make about the newest Supreme Court Justice and the travesty of her elevation. Assuming Democratic reluctance to enlarge the Court in a tit-for-tat response to the last 12 years of GOP court packing, one of those observations concerns prospects for federalism and states’ rights.

As Elizabeth Warren noted in a speech opposing Barrett, the nominee carefully refused to answer numerous important questions. She wouldn’t say whether the Supreme Court ruling upholding the right to contraception was correct, or whether the government is entitled to criminalize a same-sex relationship. Despite the applause from Republicans about the size of her family (seven children!), she refused to opine that it’s wrong to separate children from their parents at the border. She called climate change “controversial.” She evaded many other inquiries, including what should have been considered “softball” questions: whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election.

When she held up that blank notepad she’d brought to the hearing, it was evident that the pristine paper was her reminder to abstain from sharing anything resembling content.

it is likely that Barrett will join Trump’s other regressive Court picks, and rubber-stamp state laws that violate rights we have come to view as American, endorsing a radical federalism allowing the rights of individuals to be defined by the states in which they live.

I’ve previously posted about the demographic shifts we’ve seen and the effects those shifts have had on equal treatment and “one person, one vote.” I’ve previously recommended Bill Bishop’s book The Big Sort, and its analysis of what he called “voting with our feet.” The likelihood of a radical return to “states’ rights” is likely to super-charge that residential apartheid.

States like Indiana already struggle to retain young people–especially educated young people. Red states like ours will rush to take advantage of their new imperviousness to federal constitutional constraints. They won’t just outlaw abortion (and in some states, access to birth control), they’ll expand gun rights, restrict access to health care and eviscerate their already paltry social safety nets. The Court has already declined to interfere with a variety of vote suppression tactics that favor the GOP–everything from gerrymandering, to ballot counting, to poll hours and locations.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until now–they have been forbidden to retract them.

The new approach to federalism–what one might call “federalism on steroids”–will upend that understanding of American citizenship. The extent of your rights will depend upon your state of residence. If the young people with whom I interact are any indication, that’s a situation that threatens to leave a number of red states with a dwindling and aging population.

America has already seen its population shift to urban areas. As the “creative class” (and those who want to employ them) described by Richard Florida increasingly cluster in vibrant municipalities, those urban locations become even more attractive.

Gay families aren’t going to locate in states that refuse to recognize their marriages or parental rights. Women aren’t going to choose locations that allow the government to dictate their most intimate decisions. Few families will want to live in states where gun owners are encouraged to bring firearms everywhere, including schools. (And don’t think this is hyperbole–here in Indiana, we have state representatives who work constantly to legislate that “freedom.’)

States offering universal healthcare (a la Massachusetts) will look awfully good to a lot of Americans.

I wonder: At what point do “states’ rights” and a commitment to expanded “local control” end up creating separate and not-so-equal parts of what has been one country? At what point will fiscally healthy blue states decide to stop supporting “taker” red states?

When does federalism on steroids translate into secession?

Comments

Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816. Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

Comments

Denialism And The Courts

Mitch McConnell has made no bones about his highest priority–capturing the judiciary for his version of “conservatism,” and–at this. juncture, with continued control of the Senate in considerable doubt–super-charging the confirmation of nominee Amy Coney Barrett to the Supreme Court.

The likely confirmation of Barrett (who reminds me of one of the Stepford Wives), a perfect replica of a 1950’s “lady” but “new and improved” with a law degree, has been the focus of much speculation. Her ascension to the court would accomplish the dearest wish of the GOP base– a lopsided 6-3 Court majority for their brand of conservatism. A recent article from New York Magazine is representative.Titled “Trump’s New Supreme Court is Coming for the Next Dozen Elections,” the article points to the likely consequences for electoral politics:

When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats will pepper her with questions about whether she would recuse herself in any Trump v.Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it wouldmean in the long run for voting and election cases to have a sixth conservative justice on the Supreme Court.

In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans.

Other predicted consequences include striking down the Affordable Care Act and–of course–overruling Roe v. Wade.

There is a measure of uncertainty about the extent to which COVID will complicate McConnell’s super-charged timeline. (I don’t wish hospitalization or death on anyone, but given the irresponsibility of the President and GOP, I don’t think it’s wrong to hope for a couple of weeks of extreme discomfort and an inability to participate in deliberations/votes.) Lindsey Graham, who heads the committee has refused to take a COVID test despite several incidents of exposure–presumably to avoid having to isolate and thus delay the hearings.

The likelihood of Barrett’s confirmation has generated serious discussion about a Biden Administration adding Justices to the Supreme Court. Although the media has labeled that possibility “court packing,” law and courts scholars have discussed adding Justices and similar reforms (having federal appellate judges “rotate” onto the Court for specific periods or cases, term limits for Justices, etc.) for years–long before Trump’s assault on judicial independence. For that matter, the Judicial Conference has noted the need for additional judges in a statement to the Senate Judiciary Committee.

“The effects of increasing caseloads without a corresponding increase in judges are profound,” wrote Judge Brian Miller of the United States District Court for the Eastern District of Arkansas on behalf of the Judicial Conference of the United States. He continued:

Delays increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the Judiciary and the judicial process. The problem is so severe that potential litigants may be avoiding federal court altogether.

Whatever actually happens, I want to make a point I’ve not seen discussed: the arguably incorrect labelling of Justices like Alito and Thomas, and nominees like Barrett–not to mention some of the Neanderthals McConnell has placed on lower courts–as “Conservative.”

Conservatives want to preserve values that they believe are necessary to the social order; they are consequently cautious about change or innovation. People of good will can and do debate which values meet that definition and why, and “caution” about change is not the same thing as “adamant opposition.’ (If you are interested in seeing what actual, responsible conservatism looks like, visit the site of the Niskanen Center.)

The people McConnell’s GOP has placed on our courts aren’t conservative in the time-honored meaning of that term. If anything, they’re radical. To appropriate a phrase used by historian Stephanie Coons, they want to return to “the way we never were,” a fondly-remembered, wholly fictionalized White Christian America in which the “little woman” dutifully attended her husband, LGBTQ people were in the closet back behind the coats, and dark-skinned folks “knew their place.”

We are in a period of paradigm shift, and a substantial portion of our fellow citizens are–as the saying goes–standing athwart history yelling stop.

To call those people “conservatives” is unfair to the genuine article.

Comments