Home ACB, RGB, and where the SCOTUS politics come in


I watched about five hours of the Amy Coney Barrett confirmation hearings and noted two basic patterns: 1) questions about her general qualifications as a judge, and 2) questions designed to ferret out her political leanings and whether they would introduce bias into her approach to hearing cases. I came away with one basic impression about ACB: a poorly prepared lawyer bringing a case before her would be likely to lose it.

This does not mean, however, that she will not have any options to have a political impact.  Ruth Bader Ginsburg showed that it could be done, not via biased treatment of cases, but by selecting particular ones, as the U.S. Supreme Court refuses to hear the overwhelming majority of cases appealed to it.  RGB's choice of a case involving a man denied Social Security survivor benefits that would have gone to him had he been a wife rather than a husband was a key career move, establishing her reputation for fairness and setting the stage for more cases challenging sex discrimination.  We all know know about the many cases that followed giving women normal adult legal rights.  This is how SCOTUS can accomplish political change without biased hearing of cases.

It might not be immediately useful to take this angle in confirmation hearings; after all,  ACB stated continually that she could not comment on "hypothetical" cases.  Perhaps the best thing our government can do is to remind the public of the case-choice issue.  Alas, there is no way to assess how a potential justice will do this based on past performance, since choice of cases is unique to this court.   But this is why such a judge's political views matter, even when that judge's manner of hearing of cases is above reproach.

Copyright © 2020 by Dorothy E. Pugh.  All rights reserved.