If you have been watching Amy Coney Barrett’s Supreme Court confirmation hearings for insight into how the nation’s highest court will interpret the law once she sits on the bench, you should shut them off now. It is a nominee’s job to obfuscate about her beliefs and intentions, the Republicans’ job to pretend they admire her for her prudence, not her utility to their movement, and the Democrats’ job … well, no one, least of all they, can agree on what their job actually is.
The entire charade is insulting to the intelligence of any reasonably well-informed viewer. We won’t get an answer to what Amy Coney Barrett wants, so maybe we can look for an answer to the question of why the Republicans want Amy Coney Barrett.
Two Politico stories published last week sum up the stakes of this particular presidential campaign. The first asked whether Democrats were “losing the battle over voter suppression,” describing their efforts to expand ballot access, roll back voter ID laws, limit targeted misinformation campaigns, and give Americans the right to vote by mail.
Reporter Maya King wrote that the Democratic effort to defend ballot access for their Black and Latino supporters involves “a combination of lawsuits to prevent disenfranchisement and a messaging blitz” to educate voters on how to ensure that their votes are correctly cast and counted.
Of course, messaging can only go so far to counter, for example, understaffed polling places that open late, broken voting machines, or a national slowdown at the post office. For that, Democrats are going to the courts: “More election-related lawsuits have been filed this year than in the last two decades, according to the Stanford-MIT Healthy Elections Project, which is tracking the cases.” (You really do have to feel some sympathy for everyone at the Stanford-MIT Healthy Elections Project. At this particular moment, it seems a bit like working for the Healthy Crowded Basement Spitting Contests Project.)
In her article, King ably noted the successes and setbacks Democrats have seen in courts across the country. But for some insight into how their efforts to combat voter suppression could play out, it helps to read the other Politico story I mentioned. That one, by Josh Gerstein, was headlined: “The murky legal concept that could swing the election.”
That concept is something called the “Purcell principle,” based on a term coined by law professor Rick Hasen in 2016. The principle, as articulated by Gerstein, is that “federal judges should generally refrain from causing confusion by changing voting rules in the lead-up to an election.” The key word there is “generally.” Because the actual Purcell principle is that judges should do so only so long as it leads to outcomes the judges prefer.
The principle is useful primarily as a reminder of how skilled conservative judges and lawyers are at inventing neutral-sounding terms for their political maneuvering. In principle, Purcell is merely an acknowledgment that state officials know better how to conduct elections in their states than federal judges. In practice, whenever lower federal courts rule that certain barriers to voting are unfair or unreasonable and should be lifted, most of the higher court’s conservatives decide to use the Purcell principle as a rationale to reimpose those barriers. (The principle, as Gerstein details at length, is currently being tested in the Supreme Court, where the eight sitting justices are weighing whether to reverse a Pennsylvania State Supreme Court decision requiring that ballots mailed by Election Day still be counted, even if they arrive after Election Day. The supposedly federalist nature of the “Purcell principle,” along with the fact that it is supposed to address only last-minute rules changes, would conveniently evaporate if the court decided to overturn a state-level court decision made nearly a month ago.)
As Gerstein noted in his Politico piece, the flurry of Democratic lawsuits aimed at protecting voting rights, and the fact that the Supreme Court will be involved in deciding at least some of them, present an “exquisite dilemma for Chief Justice John Roberts, who is famously leery of politics.” It may be true that Roberts is personally “leery” of what he considers politics, but he has decided to make a career as a professional politician. Doing politics is his job.
The court these days almost openly engages in horse trading, negotiating not over the finer points of legal interpretation but over what the outcome of its decision will be. Its overt politicking presents a challenge to legal experts whose salaries depend on their ability to interpret the law, in all its glorious complexity, for us plebeians: To explain any legal “doctrine” these days is only to explain the justification that a few partisan individuals use, or plan to use, to rule the way they wish to rule. The media does the legal profession a massive and completely unearned favor by taking its claims about how lawyers and judges decide cases at face value, rather than seeing them for what they are: pretexts for the exercise of power.
If you were to assume that Supreme Court justices work backward from their preferred outcome in any given case, feeling around for ways to justify their opinions, you would probably have an easier time explaining the court’s actions than anyone attempting to apply some neutral-sounding principle. In fact, most court observers are already operating on that assumption, that these robed sages are in fact mere grubby politicians, even when they claim that John Roberts is eager to protect the legitimacy of the court.
Protecting the “legitimacy” of the court just means protecting its power. Roberts wishes to legislate from his perch; his conservative colleagues represent a threat to that desire only because they are so nakedly partisan and consequentialist that they may force some future Democratic government to alter the court’s form or reduce its power. The invocation of doctrines and principles can only go so far when, as Hasen has written, the court refuses to explain or justify its actions when it reviews emergency stay or injunction requests in election cases. Yesterday, in an unsigned order that did not deign to explain itself, the Supreme Court allowed the Trump administration to halt the census.
Just as there is a clear pattern in conservative jurisprudence—whether or not it drapes itself in terms like “originalism” or “textualism”—of siding with the boss over the worker, the cop over the citizen, and the powerful over the marginalized, so too is there a pattern of clearing the way for a restricted franchise, a pattern of advancing minoritarian rule and of allowing legislators to choose their electorates.
This is why no detail of Amy Coney Barrett’s biography matters, really, more than her work for George W. Bush’s legal team in the contested 2000 election. Bush v. Gore was raw partisanship lightly draped in legal justification. It was a signpost for the future of American jurisprudence. The courts were deciding whose votes would count, in order to protect the ability of their political allies to win elections, so that they could go on to install a durable majority of unaccountable magistrates on the nation’s highest court. Those magistrates are now about to be able to implement an unpopular agenda unfettered by democratic backlash. Barrett’s confirmation may be inevitable. Once it happens, Democrats should consider their options for disenfranchising her.