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View: A judicial wall America’s building to benefit certain sections and interests


The last ‘most fervent wish’ of former US Supreme Court Justice Ruth Bader Ginsburg — a global feminist icon —was that her replacement be named after the election by a new president to ensure respect for the people’s verdict and fairness of process. But there is no space for niceties in US democracy today. In fact, there are few rules any more, and what norms remain are in extremis. What matters is winning, the ‘how’ not so much.

Not only was the late justice’s last wish flouted, but also President Donald Trump raced to nominate a most un-Ginsburg like judge to replace the legendary jurist and tilt an already fragile balance on the highest court firmly to the right. The tectonic, 6-3 shift in favour of conservatives will affect generations to come because Supreme Court justices don’t retire. Trump’s nominee, Amy Coney Barrett, is a 48-year-old conservative. Her views on abortion rights, gun control, affordable healthcare, gay marriage and immigration cause deep concern to many. Women’s organisations are up in arms. The National Organisation for Women said Barrett ‘will turn back the clock on equality’.

Take a deep breath and wonder: when will US women be able to lay down their arms and stop fighting for rights other democracies take for granted? The way social forces are arrayed, no time soon. Women could face a slide back because Barrett doesn’t believe in respecting ‘precedent’ if she considers a case was wrongly decided in the first place. She has written plenty against ‘stare decisis’ — Latin for ‘to stand by things decided’, or the doctrine of precedent.

Barrett’s predisposition to jettison precedent can cause legal chaos if other conservative justices join in. First, Roe vs Wade, the landmark decision that gave US women the right to have an abortion, could be in serious jeopardy. The religious Right would like nothing better. Barrett is their best bet —she is a strict Catholic.

Although Barrett says her religion doesn’t affect her legal decisions, her membership in a small, cultish Catholic group called ‘People of Praise’ whose followers believe in ‘speaking in tongues’ — unintelligible speech as part of an intense religious experience — and where women mentors were once called ‘handmaids’ has caused alarm. She may have walked through doors Ginsburg opened, but she seems willing to close them for those behind her, fancy arguments about how new feminism has evolved to accommodate needs of the family notwithstanding.

With Barrett, Trump has named three Supreme Court justices in four years, an unprecedented windfall for conservatives and a cause for deep lament for liberals. Democrats say two of the three nominations were ‘stolen’ — former president Barack Obama was expressly denied a Supreme Court nomination by Republicans 10 months before the 2016 election on grounds that the new president should get the honour. That ‘rule’ was shredded for Barrett.

Whether Trump wins another term, his legacy is ensured for decades to come if the Senate confirms Barrett before the election. He has already appointed more than 200 conservative judges throughout the system with unabashed support by Senate majority leader, Mitch McConnell. In reality, they are the real ‘wall’ Trump has built, not the few hundred miles on the Mexican border. The wall of judicial conservatives will last longer and secure chunks of US democracy for certain sections and interests.

Do Americans have a say? That is, if politicians still care about the ‘people’s’ opinion instead of the conservative/liberal machines that increasingly propel them to power.

Turns out a majority of voters agree with ‘RBG’ — as Ginsburg was affectionately known — that a new president should name her replacement. A New York Times-Siena College survey showed 56% of Americans want the winner of the 2020 election to appoint the next justice. More importantly, 62% women and 63% independents feel the same — a slice of the voters Trump needs to win.

So, what’s the Republican calculation if there’s no political benefit to reap? It’s not clear, but then nothing about this election is. The Democrats think the Republican overreach with the Barrett confirmation will shake voters enough to go all blue — Joe Biden in the White House and a Democratic majority in the Senate. Only then can they do anything about the Supreme Court — either increase the number of justices to balance the conservative majority, or limit the term judges can serve to something more reasonable than a lifetime.

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