Lots of things are wrong with the nomination of a diehard originalist, anti-abortion activist, and Trump enthusiast to “replace” on the Supreme Court the justice who made women equal under the law in the United States. But I incline to the view that the damage Amy Coney Barrett can do is limited, even if she opts–as is likely–to make decisions that toe the conservative line. Here’s why:
- Abortion: If Barrett joins other conservatives on the Court in reversing Roe v Wade or allowing very strict limits on abortion, the issue will be then be decided by the states. Abortion is not going to become illegal throughout the country. Blue states will continue to legalize it. Some red states will severely restrict or prohibit it. If you live in a red state and don’t like that, wake up and vote.
- Obamacare: If she becomes the deciding vote against the constitutionality of the current system for providing health insurance to the uninsured, the Democrats will move swiftly to pass Medicare for All. Provided they gain control of both the House and Senate, which seems likely at the moment, the Republicans will have unintentionally done universal health care a big favor.
- Guns: It’s a bit hard for me to see how the gun lobby can make any gains over the already unconstrained availability of firearms. At some point, minorities and liberal whites will begin carrying guns to protect themselves from the Boogaloo Boys. Then the conservatives will think again about the need for gun safety. That’s not a pretty picture, but it is a realistic one.
- Immigration: Here too it is difficult to see how things can get much worse, in particular for refugees wanting resettlement in the US and immigrants seeking asylum from well-founded fears of persecution. The conditions in which people, especially children separated from their parents, are detained are already appalling. The failure of the Republicans to provide an option for undocumented children (DACA) brought to the US by their parents is inexcusable. The refusal of visas to Muslims and black people as well as restrictions on international students are going to wreck tourism and higher education in the US, even after Covid19 is under control. Lifting of temporary protected status for people who have been in the US for decades is simply cruel.
- Affirmative action: The Court has already made achieving diversity in college admissions and employment far more difficult than it should be, but it seems unlikely even a more conservative court will eliminate affirmative action entirely. Many companies and universities–especially the better ones–are wanting more diverse staff and student bodies. They will find the ways and means to get them or fall victim to the competition.
- Religious freedom: Barrett belongs to a Christian community, the People of Praise, who describe themselves as charismatic and ecumenical (as in Christian ecumenical). She is thought to have committed herself to its “covenant,” which has not to my knowledge been published. We can expect her to come down on the side of those who favor the rights of religious communities over the rights of individuals, for example by allowing them to deny abortion rights under their employee health plans. But the Court has already moved far in that direction. Her voice will be an added one to the conservative majority.
Barrett describes herself as an “originalist” in the mold of her mentor, the late Justice Scalia. Whatever this label once meant, it now allows its adherents to decide just about anything the right wing of the political establishment wants: restrictions on a woman’s right to control her own body, an individual right to bear arms outside the context of a “well-ordered” militia, restrictions on the decisions of universities and companies about which students and employees will serve their purposes best, harsh treatment of immigrants, denial of government-subsidized health insurance to tens of millions of Americans, and a preference for religious communities over the rights of individuals.
So yes, Amy Coney Barrett is a terrible choice for the Supreme Court and will live up to all the negative expectations people like me have of her. With a 6/3 right-wing majority the Court will lose the respect of the more than half the country that will vote for Joe Biden and want him to appoint Ginzburg’s successor. But a lot of the damage Barrett might cause has already been done. I doubt she can do a lot more.
PS: I realize I failed to consider the impact of Barrett, if confirmed before the election, on its outcome. Judging from past performance on the Court, all the Republican-appointed judges will favor Trump’s election in any case that gets to the Court. So Barrett’s appointment does not change the majority on election issues either.