Supreme Court Justice Amy Coney Barrett didn’t wait long to begin defending the conservative majority’s decision to allow Texas’ radical anti-abortion law to take effect; but she sure chose a very controversial venue for it. After being introduced by Senate Minority Leader Mitch McConnell (R-Ky.) at the University of Louisville’s McConnell Center last weekend, the junior member of the Court bluntly stated why she was there, “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks.” Amazingly, she failed to see the irony of making this claim while sharing the stage with McConnell, at a Center he endowed in 1991.
It was then-Senate Majority Leader McConnell who refused to even hold hearings on Merrick Garland when Democratic President Obama appointed him to the Court in 2016 after Justice Anthony Scalia died. He claimed that the Senate shouldn’t confirm a justice to the nation’s highest Court in an election year. But when Republican President Donald Trump appointed Barrett shortly after Justice Ruth Bader Ginsburg died, McConnell rushed her through a confirmation just weeks before the 2020 election. Talk about partisan!
“Judicial philosophies are not the same as political parties,” Barrett implored. Okay, what are the judicial philosophies of the six conservative justices on the Court. All are members of the Federalist Society, a group of conservative and libertarian lawyers (federalists) whose objectives align quite nicely with those of the Republican Party. As their name implies, federalists are states’ rights advocates who oppose big government and federal intrusion in state matters.
All six conservative justices are “originalists” in their approach to interpreting the Constitution. This means that they view the text of the Constitution as having the meaning that it had when it was ratified and which doesn’t change over time. Another way of stating this, I suppose, is that the vicissitudes of a modern society shouldn’t be considered in interpreting the nation’s founding document as it was ratified in 1789 and thereafter amended.
Take the Second Amendment, for example, which states, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” When these words were written, virtually all able-bodied free men in the United States between the ages of 16 and 50 were required to serve in a militia. They were armed with single shot, muzzle-loading, flintlock rifles that even in skilled hands could fire only three rounds per minute, at best. There’s simply no comparison between these ancient “arms” and a modern-day assault rifle that fires over 45 rounds per minute.
But it’s not just that weapons have changed, so have the times. In colonial America, people needed a gun to put food on the table and defend the family. Militias were armed, citizen soldiers who were typically under the control of state governments. I believe that representatives of the various states, particularly the southern slave states, wanted the Second Amendment language in the Constitution in order to ensure that the federal government couldn’t disarm their state militias.
Yet, the late Justice Anthony Scalia, writing for the conservative majority in District of Columbia et al. v. Heller (2008), had no problem separating the right to bear arms granted in the operative clause of the Second Amendment from the introductory clause concerning militias. He simply decided that this language does not limit the right to keep and bear arms to members of a militia. This landmark Supreme Court case was the first to give all citizens the constitutional right to own a gun, which delighted Republican-supporting gun rights advocates nationwide and facilitated their legal challenges to many state and local gun control laws.
In another important case, Citizens United v. FEC (2010), five conservative justices ruled, in effect, that corporate expenditures to influence political campaigns are protected speech under the Constitution. I don’t believe the Founders had this result in mind when they penned “Congress shall make no law …. abridging the freedom of speech” in the First Amendment.
Only a limited number of small corporations existed in late 18th Century America. The best example of a large 21st Century business organization at the time – which was well known to all of the Founders – was the British East India Company. This behemoth operated under a royal charter from Queen Elizabeth I and was responsible for almost half of Britain’s trade, according to a National Geographic article by Erin Blakemore. At its most formattable, the BEIC had nearly total control of the tea market and – with an army of 260,000 soldiers – ruled almost all of the modern-day countries south of the Himalayan Mountains, including India. In fact, it was tea sent by the East India Company that was tossed overboard in Boston harbor in 1773 during the infamous Boston Tea Party.
Did the Founders intend to grant freedom of speech protection to expenditures by this type of powerful business organization to influence political campaigns? I think not. So, why did the conservative majority on the Court decide to recklessly fling open the flood gates of money in politics with their Citizen’s United opinion? Was it because corporations are typically among the most important supporters of GOP candidates? That’s certainly the way it appears.
If Republican appointed Supreme Court justices have been trying to convince people they aren’t partisan hacks, they’ve done a damn poor job of it.