Following the passing of Justice Ruth Bader Ginsburg, members of both the Yale Law School and Yale College communities expressed their opinions on the Supreme Court’s future.
On Sept. 18, the Supreme Court announced Ginsburg’s death from pancreatic cancer complications. Only a few hours later, Senate Majority Leader Mitch McConnell announced the Republican Party’s intention to nominate and confirm a justice before the next election to expand a conservative majority on the Supreme Court. Over the next days, as it became clear that Amy Coney Barrett would be the nominee, discussions — both among Yale affiliates and nationally — unfolded over Barrett’s suitability for the role and whether the Supreme Court should be reformed.
“The moment that we are in right now, whether it is Black Lives Matter, #MeToo or all the anti-immigration detention, just scream that we do not have the equal protection of the law,” said Mindy Jane Roseman, the director of the Yale Law School’s Gruber Program for Global Justice and Women’s Rights. “You just see what is at stake. Now is not the time to have another uncritical and unaware individual on the court, who thinks that the status quo is a given.”
According to Roseman, Barrett is known as a devoted Catholic whose ideology is deeply inspired and informed by her religious convictions, which, Roseman says, conflate the Founding Fathers and Jesus Christ. Roseman found this worrisome, as Barrett hews to a judicial philosophy of originalism — a view asserting that there is an original public meaning to the Constitution’s words, and that its meaning should guide the Supreme Court’s decision-making.
Roseman pointed to Barrett’s 1998 Marquette Law Review article, “Catholic Judges in Capital Cases,” as an example of how her legal world aligns with her faith. In her article, Barrett parses if and when Catholic judges should recuse themselves from death penalty rulings because of the church’s near-absolute opposition to the death penalty. Barrett claims that Catholic judges should not participate in these cases to avoid contributing to the “evil” ruling of killing.
However, in the same article, Barrett intimates that practicing Catholic judges should not recuse themselves in abortion cases. Barrett claims that abortion is an absolute prohibition and recusal would be cooperating with evil. Roseman called the claim “curious” — given that the point of recusal is to ensure impartiality.
But Joseph Brownsberger ’21 said that Barrett’s religious beliefs do not devalue her credentials and would not interfere with her rulings.
“Though there may be other reasons to oppose Barrett’s nomination, her religion should not be one of them,” Brownsberger stated. “There is a general sentiment that religious beliefs are invalid because they are irrational. However, in the Catholic tradition, faith and reason go hand in hand — religious beliefs are profoundly reasonable, and they are as true as any other fact. It would benefit us to criticize and engage with Barrett’s beliefs on their own merits, rather than dismissing them as some ungrounded sort of belief.”
Shannon Sommers ’22, the president of the Reproductive Justice Action League at Yale, expressed her dismay at Barrett’s policies on women’s rights.
“Amy Coney Barrett arrives at the court on the shoulders of women like Justice Ginsburg, who fought so hard for so long to ensure that women are considered more than the mere property of their husbands,” Sommers said. “Amy Coney Barrett owes her career to heroes like Justice Ginsburg, yet her fanaticism threatens to atrophy those very rights for the millions of young women who will come after her.”
Co-President of the Yale Law School American Constitution Society Emmett Witkovsky-Eldred LAW ’22 told the News that he thinks it is likely Barrett will be confirmed by the Senate. He believes that McConnell has the votes to confirm the nominee “likely before the election” and has a hold of the elusive nomination process.
“Certainly, she has personal credentials and qualifications that are not going to be offensive to most of these senators who have said they’re willing to consider her nomination,” Witkovsky-Eldred said.
Witkovsky-Eldred explained that before considering what the ideological makeup of the court might be, it is important to recognize that its legitimacy has been in a precarious position since Merrick Garland and Neil Gorsuch’s nominations.
These were intensified by the partisan rancor surrounding Justice Brett Kavanaugh’s ’87 LAW ‘90 ascension to the Court, he explained.
“People will be increasingly pressuring especially Democrats in the Senate and in the government writ large to defy the Supreme Court,” Witkovsky-Eldred said. “People will be questioning the legitimacy of the rulings that it puts forward.”
With criticisms against the court surfacing, scholars are discussing the possibility of Supreme Court reforms — including restricting the amount of jurisdiction the court has over certain cases, restructuring its size to avoid polarization, reinventing the confirmation process and provisioning term limits, according to Witkovsky-Eldred.
Witkovsky-Eldred said that the reforms should address the polarization within the Supreme Court as well as the disproportionate power it holds. In addition, Witkovsky-Eldred believes that there should be an ideological rebalancing of the court before long-term changes are made.
Still, Roseman believes that institutional changes to the Supreme Court will not alleviate its dysfunctions.
“We now just live in a truly transnational, international sphere,” Roseman said. “We’re working with a different context with institutions that were designed in the 18th century.” Roseman said that there is a need to think about “institutional design” and how to “ensure the good life, not only for the United States population, but also the populations that we touch.”
President Donald Trump nominated Barrett to the Supreme Court on Sept. 26.
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