Judge Amy Comey Barrett is accustomed to being in a group of nine, being the matriarch of her family with seven children. At Rhodes College as an undergrad, she recalled being called to analyze “Breakfast at Tiffany’s”. When she graduated magna cum laude, the professor presented her with the Collected works of Truman Capote. Maybe Judge Barrett also remembers another work by Capote – “In Cold Blood”. A “nonfiction novel”, it is a product of six years of work by Capote and his lifelong friend Harper Lee (author of “To Kill a Mockingbird”).
In her confirmation hearing today, Democrats accused her of plotting in cold blood of killing the Affordable Care Act (ACA). For Republicans Judge Barrett was the answered prayer; but, unlike “Answered Prayers” The Unfinished Novel”, another work by Capote, Republicans look all set to have the book all written and sealed by-election on Nov 3.
Judge Barrett has credentials and achievements that nobody can, or did, question. Graduating magna cum laude as an undergrad, she went on to Notre Dame Law on full-tuition scholarship, clerked at the US Court of Appeals, DC Circuit and then with Justice Antonin Scalia at the US Supreme Court. She worked briefly in private practice, working, among others, on Bush v. Gore, her initiation to contentious litigations as a junior member. After a year at George Washington University, she returned to her Alma Mater Notre Dame where she had been teaching Constitutional Law before she was nominated to the US Court of Appeals, Seventh District where she is today.
If confirmed, Judge Barrett will be the only serving Justice who did not attend Harvard or Yale.
She will also be the only SCOTUS nominee younger than I am. Going by the example of Justice Ginsberg, whose vacant seat she is called to fill, Justice Barrett is looking at four decades of service in the Highest Court. That gives stomach ache, or euphoria, depending on who you are talking to. Democrats are worried about the overt 5-4, even 6-3, majority conservatives are going to have amongst the nines. Republicans are ecstatic about the third nomination by President Trump, who, from a ring-side seat by his screens at the White House opined that “Republicans were giving Democrats too much time “to make their self-serving statements relative to our great new future Supreme Court Justice.”
He suggested cutting off the hearing and approving “STIMULUS for the people!!!”, not that the Judiciary Committee has anything to do with it. Go Figure!
Options for Democrats are limited. They should not make her faith an issue like the way they did in 2017. In an ill-conceived attack on Ms. Barrett, a nominee for US Court of Appeals, US Senator Diane Feinstein honed in on an article she wrote as third year law student and offered “the dogma lives loudly within you, and that is a concern”. Democrats are more disciplined this time, focusing mainly on her opposition to Affordable Care Act. Judge Barrett wrote in 2017 that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.” The Highest Court begins to hear a case just after the election on essentially the same grounds. It is very easy to see where her vote will be.
Judge Barrett is betrothed to textualism, as was her mentor Justice Scalia, that says that laws are supposed to be interpreted as they are written. “Courts have a vital responsibility to the rule of law, which is critical to a free society, but courts are not designed to solve every problem or right every wrong in our public life or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people.”, she offered as an explainer to her judicial philosophy, reiterating that “A judge must apply the law as it is written, not as she wishes it were.”
In her entire opening statement of about 12 minutes, the one-word Judge Barrett did not mention is “context”. Not that it was absent entirely if you read between the lines. “I try to remain mindful that while my court decides thousands of cases a year, each case is the most important one to the litigants involved”, she offered, “I ask myself how I would view the decision if one of my children was the party that I was ruling against.” Who is involved matters, even if she goes on reaffirming her unwavering allegiance to the cult of textualism.
That gives me pause. As a layperson, I look up to the Nines to interpret the law, not just to apply it. Even in the make-believe dystopian “Mega City One”, where street judges are empowered to summarily arrest, convict and even execute, “Judge Dredd” learns the meaning of context when he is on the other side of the barrel. In these United States of America, if the Framers were believers in textualism, they would have found reassurance in Pax Britannica, the law the ruled the seas that time; those raucous debates in Philadelphia were about creating a new reality in context. Even the Supreme Court, repeatedly, stepped up and found meaning within the context of what they were trying to achieve. In her writings, Judge Barrett admitted that she is driven by faith. Context, dear!!
The sole responsibility of the Nines is to interpret in light of the day, including, but not limited to, their own faith and life-story. That is where a representative judiciary comes in. The current set of the nines is not one, it is overwhelmingly representative of the Catholic faith, not enough women, few people of color and no LGBTQ member and no immigrant. If we cannot trust the Supremes to have life experiences as we do collectively, if their collective wisdom is not representative, and harbinger, of the future we want then what binds us to their whims of fancy? Since lawlessness is definitely not a state we belong to, we need to have the law bend to the arc of reason, even if in the long run.
It will be wrong to cast aspersions on any single sitting (associate) Justice, further, Constitution allows for almost no recourse. The only way we can make it more like these imperfectly perfect union of ours is to increase the number of justices. Constitution allows, and precedence exists. Judge Barrett is almost certain to be confirmed, but we need to add people with more color and more context compared to the relatively sparse resume that she brings in.
We need a bigger, more diverse, set of justices on the bench. And that shall drive how I vote on November 3.
[Partha Chakraborty is an Indian-born immigrant; a naturalized US Citizen since 2018. Educated in India and at Cornell University, Partha is currently an entrepreneur in water technologies, Blockchain and wealth management in the US and in India. The views expressed are his own].
[Photo courtesy: Twitter]