• Hannah Ferguson

Amy Coney Barrett confirmed to the Supreme Court: THE BREAKDOWN

Updated: Nov 1, 2020

On Tuesday the 27th of October the United States Senate confirmed Amy Coney Barrett to the Supreme Court, a conservative victory merely eight days preceding the 2020 US presidential election. The deeply divided Senate voted along party lines at a final count of 52 to 48, confirming Justice Barrett’s nomination as successor to Ruth Bader Ginsburg, who passed away from a lengthy cancer battle merely one month ago. The confirmation of Amy Coney Barrett establishes an overwhelmingly conservative majority in the Supreme Court, with a 6-3 imbalance. Notably, a Supreme Court nomination has historically never been confirmed this close to a presidential election in the US. But who is Justice Barrett? How does the Supreme Court nomination work? What are the long-term impacts? How does this contrast to the Australian judicial structure?

So, Who is Amy Coney Barrett?

Amy Coney Barrett is a distinguished academic, an appeals court judge and a 48-year-old mother of seven. Notably, she clerked for and was mentored by Justice Anthony Scalia, who remains one of the staunchest and most iconic conservative judges on the US Supreme Court in recent times. She was selected by Donald Trump to serve as a 7th circuit federal appeals judge, based in Chicago, in 2017. Judge Barrett graduated first in her class at The University of Notre Dame in 1997 and spent a significant portion of her career as a distinguished professor at her alma mater. Notably, Coney Barrett’s career has featured merely two years of experience working in a law firm, before making the pivot to academia. Her national profile grew exponentially due to her conservative nature and staunch catholic beliefs, she was a notable critic of Obama’s Affordable Care Act in 2012, criticising the mandate that contraceptive be covered by health insurers, concluding this was a ‘grave violation of religious freedom’.

Please, JUST TELL ME HOW THE NOMINATION WORKS?

In the United States, Supreme Court Justices are selected through a presidential nomination when a vacancy arises, requiring a simple majority vote within the Senate to confirm the nominated individual to the position. Under the US Constitution, Justices have the capacity to retain their position as long as they elect, they can only be removed from office through impeachment. For context, the only Justice to be impeached was Justice Chase in 1805, yes you heard that correctly. Additionally, in 1805 Justice Chase was also acquitted by the Senate, a pretty clear indicator of the permanence and protections afforded to these positions. Interestingly, the Constitution does not particularise the qualifications for Justices, simply that they must be ‘trained in law’.

How Do Appointments to the High Court work in Australia?

In the United States, the Supreme Court is the highest court in the federal judiciary. In Australia, this is the High Court. The appointment of a judge to the High Court of Australia is also a controversial process in Australia. Under the Constitution, the judges of Commonwealth Courts are appointed by the Governor-General, with the advice of the Federal executive Council (the Governor-General in Council does NOT have to regard the advice provided by the Federal executive). To be eligible, a person must have been a judge of another court or have been a legal practitioner for more than five years. In Australia, High Court Justices can only be removed by the Governor-General in Council on an address from both Houses of Parliament in the same session, on grounds of proven misbehaviour or incapacity. Judges of the High Court of Australia must retire at the age of 70.

Is it RIGHT that Government Makes Judicial Appointments?

Examining The Separation of Powers in Australian and US Contexts

The doctrine of the separation of powers is regarded as one of the most vital tenets of democracy. It poses a distinct division between three elements of power: Parliament, Executive and Judiciary. The fundamental purpose of this separation is to ensure accountability, fairness and checks and balances on democratically established powers.

In Australia, the Separation of Powers looks like this:



Image: aph.gov.au

In the United States, it looks like this:



Image: thinglink.com



These are extremely watered down fundamental guidelines of the separation of powers, however, they provide a crucial examination and breakdown of the differentiation between democratic nations. When considering the critical nature of the separation of powers, how is this separation reflected in the appointment of judges?

The infiltration of politics in the appointment of justices is inevitable. A vicious and cyclical debate, some argue that a true separation of powers would ensure that judicial appointments be made without the influence of political motivation, however, others argue this is a desirable outcome and is the only way to truly achieve a balance of power. It is not a true separation of powers if the executive alone determines the holders of these prominent positions. With limited accountability currently existing for judicial officers, these nomination processes operate as one of the only governmental interventions on the judiciary, as Gabrielle Appleby describes, ‘Injecting democratic legitimacy’ into the judicial powers and processes.

So, the answer to the question of executive power in judicial appointment is a murky one. The separation of powers is motivated to prohibit either of these powers from obtaining ultimate control over the decision, however, in many ways the nominations and appointments of both US and Australian judges is largely controlled by the government of the time. With undeniable influence, we as a society then depend on this individual to deem themselves independent from the person that appointed them, ensuring the functioning of an adequate separation of powers.

But, What is the LASTING IMPACT?

The role of a Supreme Court Justice is crucial to democratic function. In terms of immediate impact, there are major disputes in battleground swing states of Pennsylvania and North Carolina, which require determination on the final accepted date of absentee ballots, providing Barrett with immediate power over the outcome of the presidential election. In the long-term, Judge Barrett poses a significant threat to Roe v Wade, a landmark 1973 decision which held that the US Constitution protects a woman’s right to an abortion, free from excessive restriction. Barrett’s links to conservative Christian groups establishes her as an active threat to the rights of the LGBTQ+ community, she also refuses to provide commentary on her views on climate change, healthcare and gun rights. Intriguingly, Justice Barrett claims to abide by originalism, a jurisprudential theory whereby judges attempt to interpret and apply the Constitution as it was comprehended at the time of ratification. This approach to judicial interpretation is an undeniably conservative approach to legal doctrine and introduces and upholds a deep tension between current legal rules, compelling questions surrounding her willingness to undo years of progressive legal developments in the United States.