Amy Coney Barret - The End of Progressive Politics

Over the past 5 years in American politics, a growing movement has emerged. Fuelled in part by the presidential campaigns of Bernie Sanders in 2016 and 2020, progressive policies have become increasingly popular with the general public. According to polling from Gallup and KFF, support for a “Medicare for All” programme could be as high as 69%, whilst as many as 60% support stricter gun control measures. The popularity of these issues has mirrored the rising power of their advocates, with progressives exerting political influence at a national level, particularly within the Democratic Party.

With its vocal advocates and populist overtones, the progressive movement shares unlikely similarities with another alliance. From its revival in the 1970s and 80s to its undeterred support for Trump, the evangelical movement, a conservative-Christian caucus whose advocates have decades of experience lobbying in DC, has placed controversial issues at the forefront of American politics. One in particular stands out: abortion, and the 1973 Supreme Court case Roe v. Wade. In a 7-2 ruling, the Supreme Court interpreted the Due Process Clause in the 14th Amendment as providing a “right to privacy”, within which was included a “fundamental” right to abortion. 

This has long been a point of contention with conservatives. Several states, including Arkansas, Kentucky and Louisiana have passed “trigger laws” which would outlaw abortion should Roe v. Wade be overturned. With so much hanging on a single court decision, evangelicals have often voted in the hope of “one more justice”, an appointment which would finally overturn Roe v. Wade. In 2016, ⅓ of evangelicals listed either the Supreme Court or abortion as their main reason for voting for Donald Trump. He's delivered, appointing two conservative justices - Neil Gorsuch and Brett Kavanaugh.

Now, a third appointment has been confirmed to the Supreme Court to replace the late liberal judge Ruth Bader Ginsberg: Amy Coney Barrett. Barrett is a favourite - little else can explain the dramatic rise of someone who until 2017 had never sat as a justice. Senate Majority Leader Mitch McConnell angered Democrats by choosing to nominate Barrett in an election year - the very reason he had given for voting down Obama’s Supreme Court nomination in 2016. Democrats’ protests have been ineffectual, if ominous; Barrett is the first Supreme Court Justice to be confirmed without a single senate minority vote since 1870, a symbol of how partisan the Supreme Court has become.

However, 250 years of precedent is not going to stop the constitutional process., Therefore, now is the time to scrutinise Barrett’s background, given that her judicial past is so short. She is a devout Catholic and a long-time member and office-holder at People of Praise, a small church network. She supports an “originalist” interpretation of the US constitution; this is a view that argues that the constitution should be interpreted based on the original understanding of the time, rather than evolving to address modern contexts. Barret shares her originalist view with the late former Justice Antonin Scalia, a conservative that believed that although the constitution permitted the death penalty, it did not protect abortion or same-sex marriage. All of Trump’s nominees defer in some way to Scalia; Barret worked for him, Kavanaugh described him as a “role-model”, Gorsuch, who replaced Scalia, described him as “a lion of the law”.

We know little of how Barrett would rule on abortion (she has never ruled on the matter directly), but she is personally against it, having signed adverts stating that“It’s time to put an end to the barbaric legacy of Roe v. Wade.” She also spoke at several anti-abortion university events in 2013. During her Senate hearing, Barrett insisted that her personal beliefs “would not bear on the discharge of my duties as a judge”. In the same hearing, Senator Diane Feinstein noted that “dogma lives very loudly within you”. Barrett's conservative Christianity does seem to have played a prominent role in her life.

Poland’s current turmoil is evidence enough that rights we in the UK may take for granted, such as abortion, have very thin protection. Even in the US, as Democrats look set to sweep the House of Representatives and the Senate, conservatives are now rallying around an unprecedented majority on the Supreme Court. In these circumstances, it is with cruel irony that President Trump’s first supreme court appointment, Neil Gorsuch, wrote the following in 2005: 

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda.” 

Now, in 2020, American liberals are pouring all their energy into the ballot box. By the time this is published, Democrats could control two branches of government, but the third judicial branch, thanks to a single presidential term, will regardless hold a conservative supermajority. It will be waiting to declare any progressive reform unconstitutional, and prioritise the rights of federal states over anything Joe Biden proposes. Many onlookers have speculated about the prospect of packing the court, but for a man with such a long history of compromise and partisan reconciliation such as Biden, that will be a difficult choice. If he does not, the Supreme Court could be a block on any progressive policy for decades to come. If he does, what further constitutional changes might the United States see?