In their wisdom, ancient Greeks conceived Themis as being the lady of good counsel. Her statue personifies justice, fairness, natural order, law and custom. She coldly stands blindfolded over many court buildings, holding the Scales of Justice aloft in one hand, a sword by her side with the other. At least that’s now things used to be: When it comes to the United States Supreme Court now, most probably not.
With Americans heading to the polls on November 3, they will be deciding the future shape of the top judicial institution in the US for at least a generation to come — far longer indeed if the nomination of Judge Amy Coney Barrett is whisked through the Capitol Hill nomination process to impose a 6-3 conservative majority in the court with lighting speed, blatant presidential opportunism and a liberal dose of political hypocrisy to boot. Themis’ blindfold will have been ripped off, the scales fixed and that sword raised to impose conservative values on the American justice system.
More intriguingly, should President Donald Trump’s choice be appointed to the Supreme Court and his Republican party heavily defeated and lose control of the Senate — opinion polls now suggest they will — the new Democratic presidency and Congress will quickly makeover the Supreme Court by adding four or more seats to the bench, tipping that scales to more liberal leanings.
In essence, what we are seeing played out in Washington now over Judge Barrett’s nomination — its timing, its narrative, its overt political interference, its opportunism, its naked hypocrisy — must have Justice Ruth Bader Ginsberg spinning in her grave. Barely a month has passed since her death at the age of 87 and it now looks as if President Trump will have succeeded in making over the Supreme Court with three right-thinking justices.
Hindsight now shows the White House event where Judge Barrett was unveiled by President Trump as his expected nominee as being a super-spreader event for coronavirus. Hindsight will most likely show it to be a turning point in the history of the Supreme Court itself — regardless of the election results come November 3.
A red win assures a majority of 6-3 — able to rule on Obamacare, abortion, immigration, same-sex marriages in a right-thinking frame of mind. The justices might indeed have to rule on the outcome of the election itself — and would those three nominees recuse themselves in the matter of the US vs Trump. Or in any other of a growing and long list of cases involving the President as defendant.
A blue win likely means the remodelling of the top court in the near future and a bench that is out of lockstep with the other branches of the US government in the meantime.
If appointed, Barrett will be 48 when she takes her seat — the youngest Supreme to sit on the bench in more than two centuries. Her nomination comes as little surprise. The long-term academic and appeals court judge was the hot favourite for the Supreme Court seat.
If there is a surprise, it’s in how fast things have moved. Ginsberg died on September 18; was buried a week later; the next day Judge Barrett was at the White House; this past week she has been answering questions on Capitol Hill; and next week she will face a four-day nomination process on the floor of the Senate. The gloves will be off. As a devout Roman Catholic, she has repeatedly insisted her faith does not compromise her work, and she will very likely have to turn the other cheek as senators decide to approve or reject President Trump’s nominee.
Judge Barrett lives in South Bend, Indiana, with her husband, Jesse, a former federal prosecutor who is now with a private firm. The couple have seven children, including two adopted from Haiti. She is the oldest of seven children herself.
Known for her sharp intellect, she studied at the University of Notre Dame’s Law School, graduating first in her class, and was a clerk to Justice Antonin Scalia, who, in her words, was the “staunchest conservative” on the Supreme Court then.
Like her mentor Scalia, she is an originalist, which is a belief that judges should attempt to interpret the words of the Constitution as the authors intended when they were written.
Many liberals oppose that strict approach, saying there must be scope for moving with the times.
She has been here before — selected by President Trump to serve as a federal appeals court judge in 2017, sitting on the Seventh Circuit, based in Chicago. She regularly commutes to the court from her home — more than an hour and half away.
Her confirmation hearing for the appeals court seat featured a now-infamous encounter with Senator Dianne Feinstein, who voiced concerns about how her faith could affect her thinking on the law. “The dogma lives loudly within you,” Feinstein said in an accusatory tone. Defiant Catholics adopted the phrase as a tongue-in-cheek slogan on mugs.
Judge Barrett’s legal opinions and remarks on abortion and gay marriage have made her popular with the religious right, but earned vehement opposition from liberals.
“I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge,” she once said. Her links to a particularly conservative Christian faith group, People of Praise, have done little to convince critics otherwise.
Yes, the ancient Greeks may have looked to Themis for justice but the final outcome will be settled by another of their beliefs: Democracy, and the court of public opinion.
Mick O’Reilly is the Gulf News Foreign Correspondent based in Europe.