New Justice Amy Coney Barrett will hear her first Supreme Court argument on Monday and when she does, she will be one of four justices out of nine who, fairly or unfairly, have taken their seats under some type of cloud.
Justice Barrett’s “cloud” was visible on the night she took the constitutional oath at the White House. As the newly confirmed justice stood on a White House balcony with the president who appointed her, while patriotic music played loudly and a crowd below applauded, the public inevitably was reminded of how vigorously her independence had been challenged because of President Donald Trump’s statements that he wanted a ninth justice on the court in time to rule on election-related challenges and because of her participation in a rushed confirmation process that had concluded just eight days before the presidential election.
Other justices have taken oaths at the White House, most recently Justices Neil Gorsuch and Brett Kavanaugh. But they were brief ceremonies in the Rose Garden. The Barrett oath-taking appeared to be more akin to a campaign event. Should it matter? The late Justice John Paul Stevens thought it did.
Stevens came to believe the ceremony at the White House was “incorrect symbolism.” He wrote in his book, “Five Chiefs,” that after the nomination and confirmation processes end “the ‘separate but equal’ regime takes over.”
Justice Barrett’s every vote—election-related or not—will be scrutinized closely now, a heavy burden on a new justice, but one she freely accepted.
Justice Gorsuch’s cloud derived from many Americans’ belief that he filled a seat that was by rights President Barack Obama’s to fill, not President Trump’s. Senate Republicans blocked Obama’s nominee, Judge Merrick Garland, from even a hearing for 11 months so that Trump, if elected, could fill the seat vacant after the death of Justice Antonin Scalia.
And putting aside the sexual assault charge levied against him, Justice Kavanaugh’s independence continues to be severely questioned because of his intensely angry and highly partisan “what goes around, comes around” response to that charge and his confirmation process.
Finally, despite the passage of two decades, the sexual harassment claims against Justice Clarence Thomas during his confirmation hearings continue to haunt his service as the public has been reminded of that event by the #metoo movement and the presidential candidacy of Joe Biden who oversaw those hearings as chairman of the Senate Judiciary Committee.
To many court scholars and Americans, all four “clouds” are wounds in the legitimacy of the institution of the Supreme Court. But some might ask why should the court be any different in today’s environment? New York Times columnist David Brooks, a conservative Republican, recently wrote: “We’ve long had polarization, but we now have in America a crisis of legitimacy, which is a different creature. It’s the obliteration of other citizens, an assumption that the institutions, like election systems, are fundamentally frauds and are rigged.”
The court’s legitimacy has been challenged to varying degrees at other times in our history: the so-called Lochner era (when the court blocked social regulations of working conditions), the early New Deal (when the court thwarted President Roosevelt’s attempts to address the Depression), the Warren era (when the court’s liberal majority expanded civil rights and civil liberties), and the Bush v. Gore ruling (when the court decided the 2000 presidential election).
There also have been calls for reforming the court in reaction to some of those challenges. Democratic lawmakers and others talked about increasing the number of justices and enacting term limits for justices shortly after Justice Gorsuch’s nomination and also after Justice Kavanaugh’s. But those calls were mild compared to what has been said with the Barrett nomination. The degree of bitterness and the threats voiced by both political parties during the final vote on the Senate floor were stark and difficult to hear.
The difference in degree between the calls for reform following the Gorsuch-Kavanaugh and Barrett confirmations is that the confirmations of Justices Gorsuch and Kavanaugh generally maintained the status quo of a 5-4 conservative majority in which one of the five conservatives, most recently Chief Justice John Roberts Jr., had the ability to form alliances with the four liberals on the left to moderate a hard shift in contentious areas of the law. But with the Barrett confirmation, that balance of sorts has changed to a 6-3 conservative majority with perhaps little incentive for two in the majority to temper the court’s rulings by aligning with the three remaining liberal justices.
In all of the talk and writings about possible reforms, one step has not been mentioned. In the New Deal conflict with the court, it was not Roosevelt’s threat to “pack” the court or his own party’s opposition to his plan that alone changed the course of the court, although both had an impact. The court itself changed course—the so-called switch in time that saved nine—when swing Justice Owen Roberts voted to affirm a minimum wage law after voting against a minimum wage law in a similar case a year earlier.
Two years ago, after the Kavanaugh confirmation, a legal scholar suggested the court itself could avoid the legitimacy crisis threatened now by exercising its discretion in the types of cases that it agrees to decide. There are many areas of the law, from bankruptcy to patents to criminal justice, where they can show they are not engaged in the Red Team v. Blue Team battles, that scholar wrote. Even in those highly charged cases that it can’t ignore, the court may have the option of narrow rulings.
The late Justice Ruth Bader Ginsburg, who often was in dissent in the court’s 5-4 decisions each term, once offered what seemed to be a message not just about the court but for all Americans when they believe the court is “out of whack” in whatever direction:
Referring to her late husband, Ginsburg remarked, “Marty used to say the true symbol of the United States is not the bald eagle. It’s the pendulum.”
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
