Decryption | The smell of the Supreme Court

(NEW YORK) September 12, 2021. The United States Supreme Court has just ignored two of its most important precedents by allowing Texas to enforce its anti-abortion law. But Judge Amy Coney Barrett strives to defend the apolitical nature of the highest American court.

Richard Hétu
Special collaboration

“My aim today is to convince you that this court is not made up of a group of partisan jacks,” she said, drawing a distinction between the “legal philosophies” of judges and their personal political opinions.

“Sometimes I don’t like the results of my decisions. But it’s not my job to decide the causes based on the results I want, ”she adds.

Amy Coney Barrett makes the remarks during the celebration of the 30^e anniversary of the McConnell Center at the University of Kentucky. The place is named after Kentucky Senator Mitch McConnell, the man who perhaps did more than any other American to politicize the Supreme Court.

For the record, the former Senate majority leader prevented Barack Obama from replacing the ultra-conservative judge Antonin Scalia with a moderate judge, Merrick Garland, during the last year of his presidency. The maneuver allowed Donald Trump to add another ultra-conservative judge to the Supreme Court after his election, in this case Neil Gorsuch.

Senator McConnell argued at the time that it was up to voters to choose the successor of the late judge by electing Hillary Clinton or Donald Trump. Four years later, he ignored his own rule in order to orchestrate, drum beating, the replacement of progressive icon Ruth Bader Ginsburg by Amy Coney Barrett, just days before the 2020 presidential election.

Could it be that Judge Barrett did not understand the incongruity of delivering a speech on judicial independence at a party in honor of Mitch McConnell?

Trouble with reality or truth

Since the start of a session that will allow the Supreme Court to rule on two of the most controversial issues in the United States, abortion and firearms, Amy Coney Barrett is not the only member of the this tribunal to have demonstrated trouble dealing with reality or, perhaps more troubling still, the truth.

Last October, his colleague Samuel Alito also felt the need to deliver a speech to defend the impartiality of Supreme Court judges. He denounced in particular “the false and inflammatory assertion that [la Cour a] canceled ‟Roe v. Wade “” by allowing the enforcement of the Texas abortion law.

Judge Alito thus seemed to refuse to admit an inescapable fact: since the 1^er September, most women in Texas no longer have access to abortion, a constitutional right guaranteed from 1973 until the 24^e week of pregnancy.

Judge Brett Kavanaugh questioned his own word. Before being confirmed to the Supreme Court by the Senate, he had repeatedly said under oath that he considered “Roe v. Wade ”as“ a precedent set ”.

However, at the recent Supreme Court hearing on Mississippi’s law prohibiting abortion after 15 weeks of pregnancy, Justice Kavanaugh compared “Roe v. Wade ”to“ the Plessis v. Ferguson ”.

The “Plessis v. Ferguson ”of 1896 legalized racial segregation in public schools in the southern United States until it was overthrown in 1954 by the“ Brown v. Board of Education ”. In other words, “Roe v. Wade ”would be a precedent set… until his overthrow, according to Judge Kavanaugh. Tortuous.

And what about his comparison between a judgment which deprived blacks of a constitutional right and a judgment which confers one on women?

Nothing “but political acts”?

But conservative judges are not the only ones who give the impression of living in an illusory or deceptive world.

In a book published last summer, progressive judge Stephen Breyer, 83, edged out Amy Coney Barrett and Samuel Alito on the subject of judicial impartiality.

“A judge’s loyalty goes to the rule of law, and not to the political party that helped secure his appointment,” he wrote in The Authority of the Court and the Peril of Politics.

It would therefore be a coincidence if the legal philosophy of conservative judges on the most controversial issues matched the political positions of the Republican presidents who appointed them to the Supreme Court.

At least one of Judge Breyer’s two progressive colleagues, Sonia Sotomayor, seems to doubt it. During the Mississippi abortion law hearing, she said that state Republican lawmakers passed their unconstitutional measure knowing that the new Supreme Court majority was created expressly by Donald Trump to overthrow ” Roe v. Wade ”.

Amy Coney Barrett could obviously create a surprise by making her lie. She has already expressed her personal opposition to abortion and her support for the elimination of certain gun laws. The laws of Texas and Mississippi on abortion could thus give her the opportunity to go against the results that she wants.

Ditto for New York law which prohibits most state residents from leaving their homes armed.

Justice Barrett and her colleagues will rule on these cases in late June or early July. They will also decide on other files, including the vaccine obligations of Joe Biden and the access of the commission of inquiry on January 6 to Donald Trump’s documents.

In the meantime, Sonia Sotomayor is not wrong: it does not smell very good on the side of the Supreme Court.