Which side of history will the voters choose?
Amy Coney Barrett followed recent precedent in her confirmation hearing before the Senate, pretending she has never had an interesting thought in her life.
Is it illegal to intimidate voters at the polls? She didn’t want to weigh in. A president postponing an election? Hmm. She’d have to think about that.
What about climate change? “I have read things about climate change,” she acknowledged, warily emphasizing that she is not a scientist. “I would not say I have firm views on it.”
But for all the obfuscation, which nominees of Democratic presidents have engaged in as well, there is no hiding the truths that Barrett A) is very bright and B) would solidify a conservative Supreme Court majority whose judicial philosophy has been on the wrong side of many of the great issues of my lifetime.
We sometimes distinguish between “liberal judges” and “conservative judges.” Perhaps the divide instead is between forward-thinking judges and backward-thinking judges.
Partly because of paralysis by legislators, partly because of racist political systems, forward-thinking judges sometimes had to step up to tug the United States ahead. Those judges chipped away at Jim Crow and overturned laws against interracial marriage, against contraception, against racial and sexual discrimination.
Just this week, Bernard Cohen, the lawyer who won the interracial marriage case in the Supreme
Court in 1967, died. In that case, Richard and Mildred Loving, a white man and Black woman who married in Washington, D.C., had moved to Virginia, where the police barged into their home at 2 a.m. and arrested them for violating an anti-miscegenation law. Forward-thinking justices struck down such laws — and that wasn’t about “activist judges” but about decency, humanity and the 14th Amendment.
It was as recent as 2003 that enlightened Supreme Court judges struck down state sodomy laws. Three backward-thinking justices, including Antonin Scalia, Barrett’s mentor, would have allowed Taliban-style prosecutions of gay people for intimacy in the bedroom. (Barrett refused to say whether the case was rightly decided.)
It is true, as some conservatives argue, that this path toward social progress would ideally have been blazed by legislators, not judges. But it is difficult for people who are denied voting rights to protect voting rights, and judicial passivism in these cases would have buttressed discrimination, racism, sexism and bigotry.
That brings us to another historical area where conservatives, Barrett included, have also been on the wrong side of history: access to health care.
Over the last 100 years, advanced countries have adopted universal health care systems, with one notable exception: the United States. That’s one reason this election is such a milestone, for one political party in America is trying to join the rest of the civilized world and provide universal health care, and the other is doing its best to take away what we have.
The GOP is succeeding. Census data show that even before COVID-19, the number of uninsured Americans was up by 2.3 million under President Donald Trump — and another 2.9 million have lost insurance since the pandemic hit. Most troubling, about 1 million children have lost insurance under Trump overall, according to a Georgetown study.
I’m not trying to scare readers about Barrett joining a conservative majority to overturn the Affordable Care Act. The Republican argument in the case, to be heard next month, is such a legal stretch that it’s unlikely to succeed fully, even if Barrett is on the court.
But it is possible, and that would be such a cataclysm — perhaps 20 million Americans losing insurance during a pandemic — that it’s worth a shudder. It should also remind us of the importance of renewing the on-again, off-again march of civilization in America toward empowerment of all citizens.
Barrett is not a horrible person, yet she’s working with a gang of Republican senators to steal a seat on the Supreme Court. This grand larceny may succeed. But for voters, this hearing should underscore the larger battle over the direction of the country.
Voters can’t weigh in on the Barrett nomination, but they can correct this country’s course. Will voters reward the party working to provide more health care or the party that has robbed 1 million children of insurance? Will voters help tug the United States forward, or will they support the backward thinkers who have been on the side of discrimination, racism, bigotry and voter suppression?
At the polls, which side of history will you stand on?