As I watched the video of Justice Clarence Thomas swearing in Judge Amy Coney Barrett as the 115th Justice of the United States Supreme Court, I wondered if Justice Thomas was thinking about the several similarities between himself and his new colleague. Like Justice Coney Barrett, Justice Thomas replaced a liberal judicial icon who used the law to dismantle enduring inequities in our society and its institutions. Both Justices were nominated by conservative Republican Presidents who had succeeded enormously popular predecessors (though I concede that the similarities between the George H.W. Bush and Donald Trump Administrations begin and end there). Both Justices survived deeply contentious confirmation battles and made it onto the Court by the same slim majority in the Senate, 52-48. And both Justices became symbols for the issues roiling the political waters of their respective moments in history. The confirmation hearing for Justice Thomas put the issue of sexual harassment on the national stage and, one might argue, planted the seeds of the Me Too Movement. In the case of Justice Coney Barrett, the fates of abortion rights, LGBTQ rights, and the Affordable Care Act (ACA) now hang in the proverbial balance of her judicial tenure.
Much has been made of the perceived hypocrisy of Senate Republicans as they pursued their successful strategy to confirm Justice Coney Barrett mere weeks before the 2020 Presidential Election. After all, this same Republican majority refused even to consider Judge Merrick Garland, former President Barack Obama’s nominee to replace the late Justice Antonin Scalia, several months before the 2016 Presidential Election. Whatever one may think of the behavior of either the Republicans or the Democrats during these two episodes, at the end of the day, the cold, hard political truth is that the U.S. Constitution is interpreted by the Party with the most votes.
The intensity of current partisan maneuvering over the composition and direction of the Supreme Court obscures the fact that the Founders believed that the Judicial Branch would be the weakest and least threatening of the three Branches of the Federal Government created by the Constitution. As the Founders understood the world, the two greatest powers that a government could possess were the power to levy taxes and the power to declare war, which were apportioned to the Legislative and Executive Branches, respectively. The Judicial Branch was imbued with the authority to interpret and preserve the law, an awesome responsibility, to be sure, but not one that would infringe upon the daily existence of the citizens of the young Republic. The Justices of the Supreme Court, argued Alexander Hamiltion in Federalist 78, were to be the “faithful guardians of the Constitution” against the unbridled passion and corruption that threatened every system of government since the beginning of civilization. And the only armor that the Justices would have in this eternal struggle against absolute power would be the lifetime appointment to the bench; or in the language of the Constitution, Justices would “hold their offices during good behaviour.”
I have not read Justice Coney Barrett’s earlier decisions or followed the arc of her career, and therefore cannot comment on the quality or depth of her intellect. I do not know her personally, and therefore will not speculate on what is in her heart or moves her soul. Like my fellow Americans, I am left with the fervent hope that our newest Justice remains true to the words she spoke last night after being sworn in by Justice Thomas:
“A judge declares independence, not only from Congress and the President, but also from the private beliefs that might otherwise move her. The Judicial Oath captures the essence of the judicial duty. The rule of law must always control.
“My fellow Americans, even though we judges don’t face elections, we still work for you. It is your Constitution that establishes the rule of law and the judicial independence that is so central to it. The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences. I love the Constitution and the Democratic Republic that it establishes, and I will devote myself to preserving it.”
Remember, Justice Coney Barrett, Alexander Hamilton is still watching.
Philadelphia Negro 