An affront to the Independence of the Judiciary and American Democracy
Viewpoint by Somar Wijayadasa*
NEW YORK (IDN) – The United States Senate confirmed President Donald Trump’s nominee, Judge Amy Coney Barrett, as a Justice of the Supreme Court. Despite the partisan rancor, Barrett’s confirmation was a forgone conclusion. The Court now has a conservative majority of 6-3 that could fundamentally reshape America. More on this later.
This year 2020 may go down in modern history as the worst year ever that faced an extraordinary set of challenges.
The relentless yet bungled coronavirus pandemic that has infected over 8 million Americans and needlessly killed over 230,000 people in the United States, and millions of Americans unemployed caused economic destruction perhaps worse than the Great Depression continues to make history.
We also witnessed an impeachment trial, a climate out of control with natural disasters of historic proportions, and social mayhem that flared mass protests and civil unrest following the deaths of several unarmed Black people, and a national reckoning on racial injustice proving that discrimination and racism are systemic across many dimensions of American society.
In the midst of this melee, it is unfortunate that Justice Ruth Bader Ginsberg passed away providing the opportunistic rush to fill the Supreme Court vacancy – thereby dragging today’s already bitterly partisan politics to a whole new level.
Reminding that President Obama’s nominee Merrick Garland was blocked in 2016 on the pretext that the nominee should be picked by the winner of the upcoming Presidential election, the Democrats accused Republicans of hypocrisy for rushing to nominate Judge Barrett just weeks before the election.
Also the urgency to confirm Barrett, and pack the Supreme Court (Trump’s third appointee) coincided with Trump’s remarks that he would not concede if he loses the election, and said that, “I think this will end up in the Supreme Court, and I think it’s very important that we have nine justices in the Supreme Court”.
That imbalance unfurled another quandary whether Democrats would expand the Supreme Court and impose term limits on judges.
That is probable if Democrats win the Presidency and gain control of the House and the Senate. But it may largely depend on how the Supreme Court would decide on pending controversial cases.
The only ideal and realistic way to preserve the independence of the judiciary is to leave partisan politics aside and appoint moderate judges to the Supreme Court. That is never likely to happen.
Judge Amy Coney Barrett
Similar to other justices of the Supreme Court, Judge Barrett is uniquely qualified as she clerked for late Justice Antonin Scalia, was a law professor at Notre Dame Law School, and a judge of the U. S. Court of Appeals.
According to the Time magazine, Barrett “practices both originalism, which interprets the Constitution according to what adherents claim was the framers’ intent, and textualism, which interprets laws based on the meaning of the words rather than the aims of the legislators”.
Throughout the confirmation hearings, Barrett asserted that she has “no agenda” and restated that for any issue that comes up, she would “apply the law and adhere to the rule of law”. That sounds reassuring in these uncertain times.
Also, when questioned how she would decide on issues before the Supreme Court — whether it is the landmark 1973 Roe v. Wade decision that made abortion legal, LGBTQ community, same-sex marriage, immigration, climate change, health care or questionable election issues — Barrett unequivocally reiterated that she “cannot answer those very specific questions without going through the judicial process”.
The Supreme Court, in 2012, upheld the Affordable Care Act (ACA) by a 5-to-4 vote. But Democrats fear that if a new “conservative” Justice would become the swing vote on the ACA case that could cause 21 million Americans to lose their health insurance —especially in the height of the Coronavirus pandemic.
It is reprehensible that the United States’ combined public and private spending on health care is the highest in the world, but it does not have a viable alternative to ACA despite vague promises by the Republicans. It is also a fact that Canada and the other 19 wealthiest countries pay about 60% as much on health and provide free healthcare to all their citizens.
Another uncertainty that may threaten American democracy is what would happen if a Presidential candidate loses the election but refuses to concede, and force the Supreme Court to decide the outcome of the presidential election as in the case between Bush vs Gore in 2000 — even though a peaceful transition of power has been the hallmark of America’s 244-year history.
Exemplary Court decisions
Lately, Chief Justice John Roberts, who was nominated by a Republican president, has joined the majority decisions in a series of important cases setting an example to the current and future justices that they can impartially adjudicate cases.
In June, the Supreme Court upheld that the Civil Rights Act of 1964 protected gay, lesbian, and transgender (LGBTQ) workers from workplace discrimination; and repealed the abortion restriction in Louisiana Law to be unconstitutional.
Likewise, the court tossed out a dozen gun rights cases that sought to overturn a slew of state-level firearms restrictions, including magazine capacity limits and handgun carry bans.
There are also cases on immigration (ruling that at least temporarily barred deporting the DACA Dreamers), antitrust, and the census on which at least one conservative justice has joined the court’s liberal members to issue liberal or moderate rulings.
At the same time, a number of cases have been victories for the Trump administration, including a decision granting the President greater control over the Consumer Financial Protection Bureau and a ruling upholding Trump’s ability to fast-track removal of asylum seekers whose claims have been denied.
The court has affirmed Trump’s policy to keep migrants in Mexico while awaiting a hearing with an American immigration judge and declined to take up an environmental challenge to Trump’s border wall.
It is noteworthy that out of the 19 decisions last term decided by a 5-4 vote, only seven cases were decided by the majority of justices appointed by Republican presidents.
Therefore, it is unjust to brand Supreme Court justices as conservative or liberal as they seem to interpret the law (as required) at every level, and settle legal disputes based on the meaning and application of laws, and whether a law breaks the rules of the Constitution.
The independence of the Supreme Court and the Chief Justice
The Supreme Court plays a momentous role in our constitutional system of government.
Apart from being the court of last resort for those looking for justice, its power of judicial review, plays an essential role in ensuring that each branch of government recognizes the limits of its own power.
It protects civil rights and liberties by striking down laws that violate the Constitution and sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities.
In essence, it serves to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion, and due process of law.
Accordingly, with his pivotal votes in several high-profile cases, Chief Justice John Roberts has confounded conservatives and liberals, and has emerged as a decisive force in taking the Supreme Court in the right direction.
In 2005, during his Senate confirmation hearing, John Roberts famously compared the role of Supreme Court Chief Justice to an umpire saying, “It’s my job to call balls and strikes, and not to pitch or bat”.
Again, last year, when Trump denounced a district court judge as “an Obama judge” Justice Roberts rebuked “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them”.
Also last year, Justice Roberts made a point of insisting that the justices do not “go about our work in a political manner”.
Such an independent judiciary is perhaps what our framers of the Constitution aspired to.
As the words “EQUAL JUSTICE UNDER LAW” written above the main entrance to the Supreme Court Building, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, it is the final arbiter of the law, and functions as the guardian and interpreter of the Constitution.
Above all, Supreme Court decisions carry long-term implications for the balance and separation of powers in the United States among the three branches of the Government: The Legislative, the Executive, and the Judiciary.
James Madison, the Father of the Constitution wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”. [IDN-InDepthNews – 29 October 2020]
*Somar Wijayadasa, an International lawyer was a Faculty Member of the University of Sri Lanka (1967-1973), worked in UN organizations (IAEA & FAO from 1973-1985), was a Delegate of UNESCO to the UN General Assembly from 1985-1995, and Representative of UNAIDS at the United Nations from 1995-2000.
Photo: Chief Justice John Roberts administers the judicial oath to Judge Amy Coney Barrett on October 27, 2020. Judge Barrett’s husband, Jesse M. Barrett, holds the Bible. Wikimedia Commons.
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