Before this election and the anti-democracy maneuvering that quickly ensued, Amy Coney Barrett’s appointment to the Supreme Court had already destroyed any expectation the American left may have had for mutual respect between them and the Republican Party. Now, let’s be clear: reducing the identity of any Supreme Court justice to their nominating party is a mistake. But in an ideal world where people abide by morals rather than their hunger for power and control, Barrett would have refused the appointment.
I do not say this as a thinly veiled insult. I simply would like to trust that when a venerated Supreme Court justice, requests as her dying wish that the incumbent party wait to make a new appointment, the incumbent party would respect the wish. Barrett is smart and it would be a mistake to not regard her as such. She is an individual shaped by many cultural factors and an upbringing in the Catholic Church. She opposes abortion and that’s her individual choice. I’d argue something of far greater importance — more so than her stance as a Republican — is Barrett’s commitment to originalism.
What is originalism? It signals that a judge would, as a rule, cite original precedent in writing any new opinion or decision. In effect, it makes interpretation vulnerable to history. However, the law is meant to be updated for a reason. The implementation of new Civil Rights statutes, building on what came before, expands our existing freedoms and builds toward a better world. The ability to do this arguably depends on the maintenance of the precedents we have now, rather than a return to those from hundreds of years prior. In a recent op-ed for the Chronicle of Higher Education, Oliver Traldi laments how recently, everyone from philosophers to literature scholars with “no knowledge” of originalism has emerged to denounce the practice. In saying so, Traldi repeatedly declared this was not only arrogant, but also showed a lack of respect for a foundational judicial ideology.
At the outset, it is important to acknowledge that originalism is used by all judges sometimes, particularly concerning the scope of the application of any constitutional law. At its core, however, such a belief system taken to its extreme perpetuates the notion that the state, as it was built at our country’s founding, has more insight into modern life than we as modern citizens do. Therefore, originalism seems to imply the state can know a hypothetical or actual situation better than we do. Most problematically, this approach insinuates modern science isn’t one of the most relevant tools at our disposal for determining the moral actions of so-called rational actors.
We don’t use neuroscientific research enough as is — a feature of our modern heyday of contemptuous anti-intellectualism. We don’t need more extreme anti-intellectualism, and it is not at all appropriate to undermine science in any situation. No matter one’s political viewpoint, it is antithetical to our society’s well-being to continue cutting the floor out from beneath our scientific institutions in this way — even and especially in the courtroom, which is meant to protect the citizens it serves by obtaining the most accurate version of truth that it can.
I also interpret Barrett’s stance as an originalist to mean she believes the state has supreme power to enforce more carceral values in the guise of “protecting” its citizens while glossing over the demonstrable ineffectiveness of resulting policies. This cuts both ways, actually. For example, the victims’ rights movement of the 1970s established a then-novel idea that victims should have a voice in the courtroom. Before the VRM, the state simply did whatever it saw fit in deciding on retributive punishment for the victim, but the victim wasn’t afforded any agency in these decisions. The interpretation of the victim as irrelevant in court proceedings has its roots in the original laws’ texts; consequently, victim impact statements are recent developments.
The Victim’s Rights Bill, also known as Proposition 8, was passed in 1982. Before its passage, victims either weren’t addressed at all or were regarded as property and therefore void of agency. Doris Tate, the mother of slain Manson victim Sharon Tate, was a major proponent of this bill — she read the first Victim Impact Statement in 1976 to persuade the court not to grant parole to Charles Manson’s followers. The long-standing notion of a victim’s irrelevance before the VRB was a vestige of British common law, under which victims were the property of the king and so any crime was technically committed against the king. Even today the idea of victims’ voices having a role in court is complicated by archaic notions of textualism under the law as it applies to, say, domestic violence situations.
In a situation fueled by primal brain stem activities in the form of shifting brain chemistry — evolutionary advantages meant to protect humans in dangerous situations — humans are still assessed as rational thinkers, which is itself nonscientific. Psychiatrist Dana Ross from the University of Toronto writes that the prefrontal cortex “normally helps us think, plan and solve problems and brain imaging shows it goes ‘offline’ with far less activity when undergoing a trauma — or reliving one.” Knowing what neuroscience has shown us regarding the way the brain typically reacts in life-threatening situations, the idea that someone in the throes of domestic abuse is able to override their brain chemistry is a willful twisting of facts — an excuse to punish individuals who dare defend themselves. By extension, referring to foundational precedent that has long been usurped by new precedent rewinds the clock to a time when none of this information was available to us.
Take a hostage situation, where an abuse victim shoots their abuser but it’s determined the abuser’s weapon wasn’t known to be active. If someone truly adheres to the principle of the rational actor in such a situation, where science has shown the brain’s chemistry to be fundamentally different than usual and there is a precedent of aggressors possibly using force, the originalist judge is fundamentally trampling on and constraining that person’s right to defend their life — by declaring defensive force somehow wasn’t warranted. Paradoxically, Barrett’s anti-abortion ideals, her Catholicism and her originalism are all in conflict here; all of these ideas of hers are loosely coded excuses for rewinding the clock by at least 70 years and rescinding the civil rights that marginalized groups, traditionally excluded from power and not granted rights, have received only recently.
Citing outdated precedents and opinions, which existed before we could even conceive of serotonin and norepinephrine — chemicals related to fight or flight — would likely lead to interpreting someone threatened with death as having the same capacity for rational thought as, say, someone taking a stroll in a museum.
Rather than paying attention to Barrett’s status as a woman, or even as a Republican, we should cut through all that distracting flak and ask ourselves: What morals will Barrett bring, or not bring, to the Court?
What I refer to here isn’t related to Barrett’s race, class or gender: It is her ability to apply rules to facts in a way that would manage to escape profoundly distorting bias, such as her faith in the mirage of idealism that was the founders’ vision for the Constitution. This desperate reach for a nonexistent ideal world populated by perfectly rational actors would buckle under the horrors of today’s post-industrial violence. I don’t want to disparage Barrett’s intellect — that is uncalled for. Unfortunately, when it comes to matters regarding the importance of the state in people’s lives, I don’t trust her ability to apply ethical principles to those whose lives are steeped in poverty or unduly influenced by other accidents of birth.
Understanding the role of context is the foundation of equity. Perhaps the victim was born with a disability and coerced into a relationship. Maybe the victim fled with bloodshed at their heels and was similarly coerced by a predatory partner. Not to mention biological context, such as when a child’s life is inviable (e.g. they won’t survive outside the womb) or when the mother’s life is threatened. In any scenario, the victim’s social, personal and biological contexts are read as irrelevant when a judge abides by the law’s original text; absolutist thinking overpowers science to the point of regression and near-silencing of crucial context. This approach is anathema to reality and science has produced mountains of evidence showing precisely how.
Admittedly, in reading over any of Barrett’s opinions one has the urge to defect to optimism, even while immersed in their own inescapable, blunting cynicism. We live in the United States in 2020, so relating Barrett’s appointment back to the prevailing climate that surrounds her is unavoidable. But I was determined to get to the bottom of what was at the core of her appointment. I would argue Barrett’s appointment is the product of a capitalist individualism with capricious roots in the idea that your idea of liberty, and my idea of liberty, are each inferior iterations of some brand of original, categorically certain liberty determined hundreds of years ago. Individualism and originalism are woven into the same mélange of American mythos, which constrains responsibility to the individual or a tapestry of individuals in isolation, rather than expanding the responsibility to include our legal system and its networked supports or institutions. Therefore, the lack of right to due process presses especially hard upon those already not favored by the system, a structuring fact an originalist such as Barrett isn’t likely to acknowledge as noteworthy.
In any case, it is unjust to mute this background or to bury it under the narcosis of “tradition.” The problem here is Barrett’s demonstrated commitment to ideas that are hundreds of years old while her supporters declare her to be an empowered woman by virtue of being a mother with a Juris Doctor. Supporting Barrett’s approach is the equivalent of declaring bloodletting with leeches to be standard, best medical practice.
Sierra Élise Hansen can be reached at hsierra@umich.edu.
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