The Weekly Screed (#987)

Dear Judge Amy

by David Benjamin

Amy Coney Barrett

Associate Justice

The Supreme Court of the United States

1 First Street NE

Washington, DC 20543

Justice Barrett:

Congratulations on your appointment to the Court and on dodging the bullet that was aimed at your integrity by Donald Trump’s absurdist plot to overturn the election. You are now, with Joe Biden as the next President, free to carry out your new job without looking over your shoulder.

Which is why I’m writing to you.

As I’m sure you know, you are widely seen in America as a partisan hack, planted hurriedly on the Supreme Court and committed to the dominion and glory the Republican Party at all costs, regardless of established laws and statutes, Court precedent or Constitutional interpretation. Much of the nation assumes that you are ready — nay, eager — to trample established jurisprudence and mangle the language of the U.S. Constitution in service of nakedly political goals and in favor of repressive minority rule by a party that uses unAmerican tactics, including gerrymandering, photo ID scams, massive voter purges, polling-site musical chairs, racial profiling, postal interdictions, voter intimidation and other cheesy gimmicks to tighten its grip on power.

I suspect that you might object to this characterization. You might even be unaware, somehow, that myriad Americans regard you as a meek little choirgirl pressed beneath the thumb of a Republican cosa nostra. However, I’m a regular person far from the Beltway. I live in the glamourless Midwest where you attended law school and taught at Notre Dame. I talk to regular people out here in the so-called Heartland. So, you can trust me when I say there’s a growing perception out here that the Supreme Court has been forged and honed as a weapon in partisan warfare by political actors — most recently Donald Trump and most ferociously Senate Majority Leader Mitch McConnell — whose only imperative is absolute control. You and your fellow Justices are popularly seen as mere pawns shuffled into place by cynical players whose sole constituency is what Franklin Delano Roosevelt eloquently referred to as “organized money.”

Indeed, we all understand out here in farm country that you present yourself philosophically as a “conservative” and an “originalist” in the mold of he late Justice Scalia. But no one on the streets where I walk (masked and distanced these days) has much idea of what those words mean — and they suspect that you, and your fellow conservative originalists, don’t really mean them. Our understanding is that these are euphemisms for right-wing extremism and corporate oligarchy.

The Republican Party, to which most of us unfortunately assume you are rabidly loyal, has railed for lo, these many years against “judicial activism,” another facile term that’s meaningless to most practical human beings. As pointless as this usage is, it becomes outright absurd in light of the rampant activism that has become the hallmark of your conservative colleagues on the Court and in the broader right-wing legal community (spearheaded, of course, by the Federalist Society, to which you belonged). Most prominent of the issues for which you were nominated and confirmed are abortion and the Affordable Care Act (ACA). 

Let’s talk about that.

You’re expected by your fellow partisans — and by the rest of us — to join with Justices Alito, Gorsuch, Kavanaugh and Thomas in overturning Roe v. Wade, thus immediately forbidding all abortions in the United States. We assume that, in tandem, you will rush to invalidate the ACA, notwithstanding the persistence in America of a pandemic that has so far killed 290,000 souls and rendered millions penniless without access to any form of medical care. Both of these imminent 5-4 decisions seem — to folks out here in “real America” — to be judicially gratuitous, manifestly cruel and a ghastly invitation to human carnage.

On the other hand, such coldblooded commandments appear to dovetail nicely with your originalist conservatism. Indeed, abortion was in 1787 an entirely illicit backroom affair irrelevant to the lofty discourse among the (all male) Founding Fathers. Who, among Franklin, Hamilton, Madison and Hancock, knew from abortion? Moreover, if Thomas Jefferson had wanted people not to die of neglect at the mercy of insurance companies, he would have expanded the holy trinity of “life, liberty and the pursuit of happiness” to include “health care.” Right?

Now, when you gang up with the four above-noted Justices (likely against the objections of Chief Justice Roberts) to snatch from American women the right to a legal abortion and from 20 million men, women and children their only access to medical care, you will almost certainly — and perhaps irretrievably — cement in the minds of both your fans and detractors the conviction that the Supreme Court is a wholly owned subsidiary of the implacable right wing of the Republican Party. Those two decisions will functionally reduce your Court majority to little more than a GOP smoker in a back room at the Trump International Hotel. The Court’s reputation, already shaky since Bush v. Gore and Citizens United, will remain soiled for generations. 

There is an alternative. 

You can, simply, do nothing. 

On the matter of abortion, you can agree, along with me and a majority of your fellow Americans, that conception both natural and in vitro, pregnancy, pre-natal care, childbirth, abortion, surrogacy and adoption are deeply personal and private medical matters in which political considerations have no standing, nor right to interfere. You can decide that the highest court in the land has no obligation to bow to political coercion — from any source — on an issue so intimate and profoundly emotional. You can concede, in all humility, that abortion is both a theological and moral conundrum so difficult and, indeed, so mysterious, that the intrusion of public dispute and legal contention is powerless to settle it and only certain to exacerbate the confusion, anger and violence that it has spawned since Roe v. Wade burst upon the scene. 

In other words, the Court can, like Pontius Pilate, wash your hands and retire from the controversy. Despite the long-held consensus that Pilate was a coward who hastened the death of Jesus, the fact remains that had not Pilate abstained, there might have been no Crucifixion, no Resurrection and no birth of Christianity. It would seem, indeed, that Pilate’s pusillanimity was ordained by God. Similarly, by untangling yourselves from the snarl of Roe v. Wade in an exercise of judicial inactivism, the Supreme Court would facilitate the sort of legislative compromise that its involvement has clinically aborted since 1973.

By the same token, a Supreme Court’s decision not to decide the fate of the ACA, but to send it back to the states and Congress for political resolution, would not only be eminently democratic, it would — by protecting 20 million of our most vulnerable neighbors — epitomize the Constitution’s mission to “promote the general welfare.” Pilate would have done it. Jesus would have approved.

These two acts of judicial restraint would have, I believe, historic impact on Americans’ esteem for the Court. They would, per Hippocrates, do no harm to anyone affected and they might set the Court back on course to regain the trust of those countless thoughtful citizens who have written you off — especially you, Justice Barrett — as a Punch and Judy ensemble in the GOP puppet show. 

Sincerely,