"My goal today is to convince you that this court is not composed of a bunch of partisan hacks,” Barrett said with a straight face. She continued, “Sometimes, I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.”
The declaration might be a tad more credible if she had not chosen to appear in an overtly political setting. University of Texas law professor Steve Vladeck tells me: “I’m hard-pressed to imagine a worse place to give a speech about the court not being partisan than . . . at an event in which she was introduced by Senator McConnell. It’s either remarkably tone-deaf or it’s deliberate. Neither is encouraging.”
And it might be a tad more credible if it did not come just days after she and her fellow conservatives on the bench used the “shadow docket” to allow Texas’s antiabortion law to go into effect. Shredded by Justice Sonia Sotomayor’s dissent, no one could honestly think the order was guided solely on procedural grounds.
Barrett, who was nominated by a president who pledged to see Roe v. Wade overturned, and was picked from a list of judges vetted by antiabortion advocates, was no neutral observer in the majority’s refusal to block the law. We saw and heard during her confirmation hearing evidence of her own extreme antiabortion advocacy and her own remarks about backpedaling on decades of abortion precedent. Yet we are to believe none of her views had any impact on the shoddily argued order issued in the dead of night allowing a statute plainly in violation of Roe to go into effect?
Are we really to believe that the conservative justices who held up the former president’s anti-Muslim travel ban, who knocked down an extension of the Deferred Action for Childhood Arrivals program, who undercut unions’ ability to organize, who repeatedly tried to overturn the Affordable Care Act and who adhered to a disingenuous if not tortured reading of Section 2 of the Voting Rights Act just coincidentally stumbled onto positions supported by the right-wing promoters of their nominations and confirmations?
Barrett threw out an old cliche: “Judicial philosophies are not the same as political parties.” Fine, but when one’s judicial philosophy is designed to inevitably result in outcomes favorable to one political party, it’s fair to say that is a distinction without a difference.
Constitutional scholar Joshua Matz thinks Barrett’s speech ignores several key factors. “First, it asks us to ignore the outrageous, dishonorable and overtly partisan tactics that created the current conservative supermajority,” he tells me. “Second, it asks us to overlook the court’s startling lurch toward ‘shadow docket’ rulings issued in the dark of night, which (as Justice [Elena] Kagan recently observed) 'every day [becomes] more unreasoned, inconsistent, and impossible to defend.” Matz explains that Barrett’s speech also “fails to grapple with the fact that the court’s decision-making has skewed sharply to the right based solely on a change in personnel, as evidenced by the profoundly flawed decision issued last term gutting a key provision of the Voting Rights Act.” Matz adds, “Finally, it misses the fact that several prominent voices on the court appear to have changed their tunes on signature issues (including national injunctions and the proper judicial role in reviewing immigration/asylum policy) since a new administration came into office.”
Barrett is not alone, of course, in perpetuating the myth that Supreme Court justices — with the exceptions of, for example, former justice Anthony M. Kennedy and newly-moderate Chief Justice John G. Roberts Jr. — do not come prepackaged with views that will deliver desired results. (In Roberts’s case, his recent moderation seems to be an overt effort to restrain the unbridled race to the right from other justices to protect the court’s legitimacy.) My colleague Ruth Marcus recently dismantled Justice Stephen G. Breyer’s “artfully airbrushed version of the judicial process,” in which right-wing justices deliver precisely the results the right-wing advocacy groups expect them to produce.
So are Barrett and Breyer simply lying to us? I would suggest it is something more insidious: They have convinced themselves that their judicial “philosophy” is neutral, rather than a means to turn the court into an instrument of partisan power.
Let’s get real. Conservative justices have been tutored in Federalist Society buzzwords such as “judicial restraint” (except, for example, when rewriting the Voting Rights Act). They have latched onto a brand of jurisprudence in which the only “legitimate” method of interpretation is time-traveling to the 18th century, often neatly bypassing the post-Civil War amendments that federalized rights. That’s how the conservative justices manage to regard themselves as paragons of judicial virtue.
They cannot acknowledge that their reasoning constantly twists and turns, elevating certain rights (e.g., religious freedom, gun ownership) but diminishing others (e.g., those guaranteed by the 14th Amendment). They refuse to concede that their view of executive power expands like an accordion for Republican presidents and contracts for Democratic presidents.
It is precisely because justices lack the discipline and self-awareness to divorce their own judicial “philosophies” from the partisan ends their “side” wants that term limits become a necessity. Judges who no longer feel constrained by precedent and nearly always fulfill the policy edicts of the president who nominated them should not have lifetime tenure. When the highest court is now a forum for raw exercise of political power, a president’s picks should not be empowered to serve for decades.