When God called Justice Ruth Bader Ginsburg home six weeks before the election, it gave President Trump new confidence that he had been right with his famous boast that God was on his side at election time. He had made the claim when this election season began by recalling that there was no way he would have won the 2016 election without God’s machinations in the final days before the voting. God would take care of him again in this election.
God has delivered for Trump again by arranging for a new hard-eyed Supreme Court justice who will rescue him or his party, or both, in their hour of need, which is right away. Trump accepted His favor by quickly announcing that he was replacing Ginsburg with Amy Coney Barrett, whose maiden name is only one consonant off Trump’s earlier savior. God is clever with His messaging.
To refresh your memory, James Comey, then-FBI director and a lifelong Republican lawyer, was the Lord’s supposed agent in 2016. Comey first announced three months before the election that the FBI’s intensive investigation of 30,000 emails that went through Hillary Clinton’s private server when she was secretary of state showed poor judgment but no grounds for prosecution. Comey made the unusual announcement because, although the email investigation was over, Trump was telling crowds and tweeting that, if she were elected, the nation would be subjected to the spectacle of the president being led out of the White House in shackles. Eleven days before the election, Comey dramatically announced that agents had discovered a new trove of her emails and he was reopening the investigation. She plummeted in the polls, to virtual parity with Trump. Thirty-six hours before the election, Comey said oops, there really had been no new email evidence. Clinton still beat Trump by nearly 3 million votes but lost the electoral college. Six months later, Trump fired his savior, Comey, for refusing to pledge personal loyalty to him and ground the FBI’s Russia investigation.
Ginsburg’s death was supposed to be God’s October surprise, giving Trump the chance to put an inflexible ideologue and Republican loyalist on the evenly split Supreme Court, perhaps to deliver him from the voters’ reprobation if she got the chance but, anyway, to protect him and the party from the fast pursuing angels of justice — grand juries, prosecutors, congressional watchdogs and maybe his own IRS, which has been chasing him relentlessly if not very aggressively to recover the $72.9 million he cheated the country of on his 2010 tax return.
Forget about abortion for a moment. Protecting Trump and assorted minions from the law is Amy Coney Barrett’s immediate task. Trump said as much when he addressed Republican state attorney generals. He said it was important to get Barrett on the bench by Election Day so that it would not be split 4 to 4 on issues rising from the election. He apparently figured the chief justice, although a Republican, could not be counted on to protect a Republican president, as the justices did in 2000 in declaring George W. Bush the winner, though he lost the popular vote by more than 500,000 and they were still counting ballots that survived the vote suppression in Florida. The Republican majority had trouble explaining its legal reasoning and concluded by saying, in the rarest of opinions, that their ruling could never be cited as a precedent. In other words, let’s don’t ever do this again! Four justices, and we now presume five, will do it again if the chance presents itself.
But more than election issues are on Barrett’s plate as a freshly minted justice. All the tax issues with federal and state prosecutors and Congress are rising to the court again, including access to the Trump tax returns that are stored at Mazars Inc., the big corporate tax-accounting firm, and along with civil matters like orders for him to provide DNA evidence in the defamation suit of Jean Carroll, the author and Elle columnist, who claims Trump raped her in a dressing room at Bergdorf-Goodman one block from his office in the Trump Tower, or a similar case in which Summer Zervos, a former contestant on his TV show “The Apprentice,” claims he sexually assaulted her in 2007. The courts still must judge whether there was illegality in his bribing the porn stars Stormy Daniels and Karen McDougal or whether his fixer Michael Cohen would absorb the only punishment. What will Amy Coney Barrett say about all those matters?
Will she recuse in all or any of these cases, including any election question, since Trump has made it clear that is why it was important to rush her appointment and confirmation?
Of course, she refused to say at her confirmation hearing whether she would recuse in any case — election matters, her patron’s personal legal troubles, abortion, the Affordable Care Act or the regulatory decisions of the Trump and Obama administrations.
She appears to be bound to recuse under the standard set by the Supreme Court in Rippo v. Baker and other cases. The court said recusal was required, not merely when a conflict of interest was obvious but also when “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” The public must never be persuaded that a justice’s vote was based on personal or political interests rather than the facts and the law.
The papers have been full of contrived speculation about whether Barrett would recuse or whether she might actually vote not to abolish the health protections of the Affordable Care Act or not to scrap Roe v. Wade and end legal protections for women and girls to get abortions.
We know, almost to a certainty, how she will vote on those issues and on any other issue where corporate interests clash with those of employees, consumers or government regulators. For a justice with the least actual legal practice of any justice in modern times, she has remarkably clear and firmly stated convictions.
On abortion, she has denounced the procedure over and over and called Roe v. Wade, the Republican-constructed precedent legalizing abortions, “barbaric” and the legal reasoning behind it wrong. As a law teacher at Notre Dame she praised the legal reasoning of the Republican justices in the Affordable Care Act case who wanted to throw the whole thing out as a violation of the commerce clause and attacked the alternate reasoning of Chief Justice John Roberts that kept the Affordable Care Act afloat on the basis that the tax provisions of the act rendered it permissible under the commerce clause. She accused Roberts of pushing Obamacare “beyond its plausible meaning” in order to save it. Do you really think she will now switch and side with Roberts to save it again?
In her confirmation hearing, like other nominees before her, Barrett indicated that she had not made up her mind on whether to overturn Roe v. Wade, citing Ginsburg herself at her confirmation hearing as being unsure and noncommittal. But here is what Ginsburg said at her confirmation hearing when she was asked about abortion and Roe v. Wade: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”
But we don’t need to read any of Barrett’s opinions about abortion, the Affordable Care Act, same-sex marriage, sexuality, employee or consumer rights, voting rights or anything else that falls along modern social and economic fault lines. She is a longstanding member of the Federalist Society. That is really about all you need to know. Every Republican justice now — all six of them — came out of the club, although there has been dispute about whether Roberts, the occasional dissenter, was a bona-fide member. The Federalist Society, which was organized in 1982 by privileged Yale Law School white boys, eventually became a checklist for Republican administrations looking for dependable right-wingers for appellate courts. George W. Bush and Trump plucked their appellate judges from the Federalist scroll.
The Federalist Society doctrine is that the U.S. Constitution is a libertarian document that was never meant to allow all the liberal decisions of the last 65 years affirming racial, gender and sexual equality under the law, restraining corporate greed and environmental destruction, or constraining executive power. On the last issue, you might note that the Federalist Society hosted a telephone conference in 2018 about the Mueller investigation of Russian interference in the 2016 election and its alliance with Trump, his family and campaign cohorts. The whole investigation by the Justice Department was unconstitutional, Federalist presenters averred. We may get to see pretty soon whether Amy Barrett agrees with her sponsors. Maybe she will recuse.
She testified that she was entirely in sync with her first boss, Antonin Scalia — a “textualist” and “originalist” when it comes to interpreting the Constitution. She interprets the Constitution to mean exactly what the words say. But that really is not what a Federalist Society judge does, as Scalia, Roberts and all the rest repeatedly demonstrate. The Federalist Society’s approach to the law is the same as conservative jurisprudence has always been: It is the search for a plausible-sounding theory for why the Constitution does NOT mean what it says. In Federalist Society doctrine, the soaring phrases of the Declaration of Independence and Bill of Rights — the guarantees of freedom of speech, association, religion, full participation in the civil society and protection of the laws for everyone — obviously were not expected to really mean all that because the bigots who wrote them obviously did not intend them to apply to Black people, women, men who didn’t own property, gays, lesbians, disabled folks or darker-hued immigrants.
The best modern example of the search for plausible theories to justify stretching the Constitution far beyond its literal words was the Supreme Court’s hodge-podge of opinions in the Affordable Care Act case that said the Constitution’s commerce clause did not really mean what it said — that it was the federal government’s job, not the states’, to regulate commerce like medical insurance. The Republican justices all found a provision or two in the huge statute that they doubted the founders would have found to be a good exercise of commercial regulation. Roberts found a still more arcane reason, a tax on nonpurchasers of insurance, to say that, well, OK, the act was a legitimate exercise of commerce power.
Soon, we shall see what Trump’s new justice thinks of all those thin excuses for jurisprudence in the Texas lawsuit to end the Affordable Care Act and medical care for some 300,000 Arkansans who were insured by the Medicaid expansion, its protection for preexisting conditions or other provisions of the law. Barrett said Trump did not tell her how to vote on it.
He didn’t need to. He said a thousand times that he wanted the Obama law obliterated entirely. That is why she is there. Along with many of the Republican senators who confirmed her, Trump will consider any other vote treason.