Justice and Amy Coney Barrett’s Supreme Court nomination

Kamala Harris did what she’s famous for, in this case, exposing Amy Coney Barrett as disingenuous on some claims of impartiality on abortion rights and Obamacare.^[1]

The point that gets missed here is that for many conservatives, anti-choice and anti-Obama-anything positions seem ‘impartial’ because, for them, abortion rights and Barack Obama are ‘radical’ (to me, reflecting my own ‘objective’ and ‘neutral’ perspective, both these claims are ludicrous). What we are really seeing here is more profound even than John Hasnas’ meticulous takedown of the idea that law can be interpreted objectively,^[2] that the idea of ‘impartiality’ itself embeds values that cannot, on proper examination, be viewed as ‘impartial.’ The values of ‘objectivity’ and ‘neutrality’ in fact start respectively from the pretense and hubris of omniscience (a “God’s eye view”), which no human can correctly claim to possess, and a premise of the status quo, normalizing any and all injustice in the way things are. They are not, in fact, ‘objective’ or ‘neutral.’ Hence, ‘impartiality’ cannot be impartial.

We can see this further with the absurd claim of ‘originalism,’ where we imagine we can divine the intent of long-dead authors in interpreting their texts. We can see this with the imagination in ‘literalism’ that there is a single ‘objective’ reading of any text.^[3] The simple fact is that if you want justice, you want a judge who can and will act upon the full context of your circumstances^[4] and who shares your values, you won’t get it any other way, and you will feel profoundly betrayed when you don’t.

Thus, ‘justice,’ reduced to law,^[5] can never even aspire to be just. And thus, in their essentialization of many accused people as irredeemable and in their consequent emphasis on retribution and their consequent ridicule of rehabilitation,^[6] many conservatives show that justice itself is not (for them) a conservative value.

Harris was clever in getting Barrett to claim she had no knowledge of Donald Trump’s commitment to appoint judges who would strike down Obamacare and in highlighting Barrett’s previously expressed views on reproductive freedom.^[7] But many conservatives feel as betrayed by Roe v. Wade and Obamacare as liberals feel indignant in their defense, even as the former took what seems to me an unduly circuitous route to affirming abortion rights^[8] and the latter really amounts to a bailout for the healthcare and pharmaceutical industries.^[9]

Courts can never reach a satisfactory conclusion because one side or the other will feel unjustly treated and there is no middle ground: Either women have a right to an abortion or they do not. Either people have a right to healthcare or they do not. I join with those who affirm those rights as I join with those who affirm justice over law. Many conservatives reject those rights just as they affirm law over justice. The positions are irreconcilable and, to the extent we treat these assertions as foundational or we take the sheer quantity of similarly contrary assertions as foundational, we belong in separate countries.

1. ^[1]Maanvi Singh, “Kamala Harris grilling prompts doubtful claim from Amy Coney Barrett,” Guardian, October 13, 2020, https://www.theguardian.com/us-news/2020/oct/13/kamala-harris-amy-coney-barrett-senate-hearing↩
2. ^[2]John Hasnas, “The Myth of the Rule of Law,” Georgetown University, 1995, Copy in possession of author↩
3. ^[3]John Hasnas, “The Myth of the Rule of Law,” Georgetown University, 1995, Copy in possession of author↩
4. ^[4]Wanda D. McCaslin and Denise C. Breton, “Justice as Healing: Going Outside the Colonizers’ Cage,” in Handbook of Critical and Indigenous Methodologies, eds. Norman K. Denzin, Yvonna S. Lincoln, and Linda Tuhiwai Smith (Thousand Oaks, CA: Sage, 2008), 511-529.↩
5. ^[5]Michael Herz, “‘Do Justice!‘: Variations on a Thrice-Told Tale,” United Settlement, 1996, http://uniset.ca/terr/art/dojustice.html↩
6. ^[6]George Lakoff, Moral Politics, 2nd ed. (Chicago: University of Chicago, 2002).↩
7. ^[7]Maanvi Singh, “Kamala Harris grilling prompts doubtful claim from Amy Coney Barrett,” Guardian, October 13, 2020, https://www.theguardian.com/us-news/2020/oct/13/kamala-harris-amy-coney-barrett-senate-hearing↩
8. ^[8]The fourth amendment (U.S. Const. amend. IV) affirms “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A prohibition on abortion amounts to the seizure of women’s bodies (“persons”) for purposes not their own. Roe v. Wade, 410 U.S. 113 (1973), instead derived the right to an abortion from a right to privacy taken as implicit in the due process clause of the 14th amendment (U.S. Const. amend. XIV, § 1). The Court’s logic in this case is, to me, bizarre.↩
9. ^[9]Mike Madden, “Why Obama snubbed single-payer,” Salon, March 12, 2010, https://www.salon.com/2010/03/12/single_payer/; Gaius Publius [pseud.], “Obama Got $20 Million from Healthcare Industry in 2008. Was Killing Single Payer Part of the Deal?” Naked Capitalism, February 5, 2014, https://www.nakedcapitalism.com/2014/02/gaius-publius-obama-got-20-million-healthcare-industry-2008-killing-single-payer-part-deal.html↩