“Predicting how you might rule” in a particular case, Sen. John Cornyn (R-Tex.) asked her on Wednesday, “is that even possible?” Barrett replied: “It’s not possible.”
Barrett’s doing more than just being evasive. She is actually making an extraordinary claim about herself: that she is not just deserving of sitting on the Supreme Court but will in a real way be superior to every justice who has served there. The image she and Republicans are presenting is of a judge who has just emerged from a chrysalis where her brilliant legal mind grew without the unfortunate distractions of the real world. She is, they would have us believe, a naive genius, able to do what no other justice can.
This is the true absurdity that comes through in Barrett’s repeated insistence that she has almost no political opinions at all, and certainly none that might infect her judging.
What does she think about climate change? “I would not say I have firm views on it.” Does she agree with “originalists” who think Social Security and Medicare are unconstitutional? “I can’t answer the question in the abstract.” Does she agree with the late Justice Antonin Scalia’s insistence that Congress didn’t renew the Voting Rights Act for any real reason but simply to perpetuate what he called “racial entitlement"? Her answer could have come from the mouth of a fifth-grader delivering a book report: “As for the Voting Rights Act, it was obviously a triumph in the civil rights movement.”
This is not mere evasion. Again and again, Barrett has claimed that she alone will do what no other justice has done — not her mentor Scalia, nor Ruth Bader Ginsburg whom she seeks to replace, nor any of the court’s current members. She will be the best of them.
To illustrate what I mean, here’s what I would ask her if I were on the Judiciary Committee. First: Judge Barrett, who’s the most conservative justice on the Supreme Court?
Given her answers up until now, she’d probably say, “Gee … ‘conservative,’ you say? I don’t really think in those terms.” So I’d have to try again: If I asked 100 law professors who the most conservative justice on the Supreme Court is, what would they say? The answer is Clarence Thomas.
And if I asked 100 law professors who the most liberal justice on the court is, what would they say? The answer is Sonia Sotomayor.
And if I asked those 100 law professors to array the remaining justices between Thomas and Sotomayor, what would they say? The answer is that while there might be a bit of disagreement about how some closely aligned justices would fall, the consensus on the court’s ideological spectrum would look something like this, from right to left: Thomas, Alito, Gorsuch, Kavanaugh, Roberts, Kagan, Breyer, Sotomayor.
Because there’s no perfect measure of ideology, some might come up with a slightly different array; depending on how you weighted certain cases, Brett M. Kavanaugh might come out to the right of Neil M. Gorsuch or Elena Kagan to the left of Stephen G. Breyer. But everyone understands in broad terms where all the justices fall.
Now consider what Barrett is asking us to accept about her. If you believe what she has said during her confirmation hearings, five or 10 years from now, when we examine her votes, opinions and dissents on all the cases that have come before the court, we’ll have no idea whether she’s a liberal or a conservative. Her decisions will be so unpredictable, so disconnected from politics, that it will be impossible to pinpoint any ideology at all in her jurisprudence.
Which means that she alone will be so unspoiled. We are all well aware of the ideological positions of the other justices, but Barrett will be different. She will move among them like a kind of spirit, impossible to locate or predict where she might emerge next.
This is, of course, false. Barrett has political views like everyone else. That’s why she’s sitting where she is: From the very beginning of her career, she was identified as a future Republican appointee, because she was both brilliant and extremely conservative. She was cultivated and elevated by a right-wing legal establishment that exists for the purpose of putting conservatives like her on the courts so they can issue conservative rulings and move American law in a conservative direction.
Let’s be honest: All of us, whether we’re laypeople or lawyers or Supreme Court justices, believe that the outcomes we want to see are justified by the law and the Constitution. Human beings have a limitless ability to rationalize their own preferences to themselves. It almost never happens that a justice says, “The position I’m taking is constitutional baloney, but it gives me the outcome I want.” (The conservative justices in Bush v. Gore said as much, but that’s the rare exception.)
But Barrett is not merely saying that she’ll do her best to put aside her beliefs, or that there will be times when she’ll vote with the court’s liberals. She claims that she alone will be without any ideology at all. It’s an insult to all of us.
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