If Supreme Court justices don’t want to be seen as “partisan hackers,” they shouldn’t be acting like them.
In a speech last week at the McConnell Center at the University of Louisville Law School, Judge Amy Coney Barrett said, “This tribunal is not made up of a group of partisan hackers. She added: “Judicial philosophies are not the same as political parties. “
Aside from the irony of making these statements at an event honoring Senator Mitch McConnell, who blocked Merrick Garland’s confirmation in court and rushed through Barrett’s confirmation to precisely Because of their ideologies, the reality is that time and time again the Republican majority court has ruled in favor of Republicans in the political process.
Does Barrett really expect people to believe this is a coincidence?
In the same speech, Barrett reiterated that she is an originalist, a person who believes the Constitution should be interpreted to mean what it might have meant at the time it was passed. Yet none of the court’s rulings regarding the electoral process in favor of the Republicans can be defended on original grounds, showing just how false its claims are.
In a series of rulings, with all of the Republican-appointed judges in the majority and the judges appointed by the dissenting Democrats, the court tipped the scales heavily in the election in favor of the Republicans. In 2010, in Citizens United v Federal Election Commission, the court ruled 5 to 4 that companies can spend unlimited amounts to elect or defeat candidates.
Business interests, which overwhelmingly favor Republican candidates in their campaign spending, are spending more than 15% against unions. Neither political spending nor business, as we know it today, even existed when this country was founded.
In rulings in 2013 and this year, the court’s Conservative majority gutted the protections of the 1965 Voting Rights Act in a way that helps Republicans and hurts voters of color and Democrats. In 2013, in Shelby County v Holder, the court, 5 to 4, struck down the law’s requirement that states with a history of racial discrimination obtain preclearance before making a significant change to their electoral systems. Each of those states where preclearance was required was Republican controlled.
Chief Justice John G. Roberts Jr. wrote for the majority and said Congress violated the principle of equal state sovereignty by not treating all states the same. This is nowhere to be found in the Constitution – and it certainly was not when the 14th Amendment was passed by a Congress that forced reconstruction, including military rule, on the southern states.
After the Shelby County affair, Republican-controlled governments in states like Texas and North Carolina immediately put in place restrictions on voting that had previously been denied at preclearance.
In July, the court, now made up of six Republican appointees, removed another crucial provision from the voting rights law. Article 2 prohibits state and local governments from having electoral systems that discriminate against minority voters. Congress amended this provision in 1982 to provide that the law is violated if there is evidence of a racially discriminatory impact.
The Brnovich v Democratic National Committee case involved two provisions of Arizona law that the United States Court of Appeals found discriminated against voters of color. But Judge Samuel Alito, writing for the Republican-appointed judges, has imposed numerous requirements that will make it very difficult, if not impossible, to prove a violation of the voting rights law.
He said, for example, that courts must consider whether the new restrictions are worse than what existed in 1982 when the law was changed, all the other ways people vote and the state’s interest in preventing fraud. For any restriction on voting, a court can now say that it is not as serious as some that existed before, or that there are enough other ways to vote, or that the interests of the state are sufficient to justify the law. In her dissent in Brnovich, Judge Elena Kagan noted that there was new evidence that “the Shelby decision could jeopardize decades of advancement in voting rights.”
Conservative judges, who say they focus on the text of the law in interpreting statutes, have created limits to the scope of the Voting Rights Act that are nowhere mentioned. The result is that laws passed by Republican legislatures in Georgia, Florida, Texas, and other states are now much more likely to be obeyed.
In these and other cases, Republican judges have amended the law to significantly favor Republicans in the political process. Barrett’s protest against judges being seen as “partisan hacks” rings hollow when they are. And it is ridiculous to say that “judicial philosophies are not the same as political parties”. I would challenge her to give a single instance where the conservative judges of the court took positions that were at odds with the views of the Republican Party.
The most obvious example, of course, is abortion. The GOP vehemently opposes abortion rights and Republican presidents have appointed judges with this view. No one should have been surprised when the five conservative justices refused to ban Texas law banning abortions after the sixth week of pregnancy, even though it blatantly violates the constitutional right to abortion.
The decisions of the Supreme Court have always been and always will be the product of the ideology of the judges. No one – let alone a Supreme Court justice – should argue otherwise.
Erwin Chemerinsky is Dean of the Law School at UC Berkeley and a contributor to Opinion. He is the most recent author of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights“.