The death of Ruth Bader Ginsberg signals the death knell of the tradition of liberal American judges from William O’ Douglas, to the Irish-American William Brennan, and Harry Blackmun. In recent times we have had Stephens, and perhaps Souter, who went on a voyage of passage from conservatism to moderate liberalism. Such warning signs ripple across the pond as America sneezes and Britain catches a cold. Or rather all catch Covid-19, and Trump appoints Amy Coney Barrett before the election.
And it is abortion that at one level is the defining issue or rather the side-tracking defining issue. America has been down this road before when Reagan appointed Sandra Day O’Connor to be the first female Supreme Court judge, as an ardent anti-abortionist, only for her to endorse to a limited degree the fundamental right to procreative autonomy in Planned Parenthood v Casey (1993). I do not think Trump has made the same mistake, much to my chagrin.
Let us be clear: the appointment of a woman because she is a woman is not a cause for unique celebration. It is a Populist gesture to deflect criticism from her judicial philosophy. She is in fact a deeply conservative alt-right human being, whatever about her personal qualities.
Populism joins religious fundamentalism with a veneration of unregulated free markets in American. Top it off with a clean cut corporate fascism and you have a signature hemlock cocktail.
An ardent Catholic with seven children (two adopted), contraception not I suspect being permitted; a supporter of the ownership, possession and use of handguns even for non-violent felons (see Kanter v Barr (2019)), something she has inherited from the recently deceased Supreme Court Judge Anthony J. Scalia. She clerked affectionately for the guy we like to call Tony the Phoney.
It now gives hardline conservatives an in-built majority of 6-3 to overturn the case of Roe v Wade (1973). Thus the case which established the right to abortion in America is imperilled and a neoconservative appointed to the bench. Harry Blackmun, the author of Roe v. Wade foresaw this calling it in Planned Parenthood (1973) the light flickering at the end of his moving judgment. That light is now soon to be extinguished.
Of significant concern to Irish and U.K. nationals, even allowing for special relationships, she also voted as a circuit court federal judge for Trump’s hard line legislation on Green Cards and will no doubt also support the expansion in the protection of religious rights, which the Supreme Court has hitherto been agnostic on.
Gay rights groups have been very troubled by her views. She has gone on record and is appointed to dismantle even the remnants of Obamacare, narrowly endorsed by the Supreme Court in truncated form. Hard right-wing Republicans see health care as an entitlement not a right.
Trump’s greatest legacy according to the Senate majority leader is the stacking of the Federal courts with 217 hard line conservatives and now three in rapid succession to the Supreme Court. The conservatives understand that the three recent appointments will dictate policy for perhaps forty years and are unlikely to be impeached. So the Thermidorian Reaction has seized control, irrespective of the outcome of the forthcoming Presidential election.
To understand the ascension of such a person to me is to understand the stranglehold that the alt-right now exerts over U.S. politics. The conservative hard rightist is the new norm. Politics has shifted to the extent that even modest liberalism is equated with the dread spectre of socialism, and Trump in the recent debate with Biden can sanction and endorse alt-right fascism and thuggery without restraint, thus encouraging disparate sympathisers throughout the planet and in the U.K..
In terms of judicial philosophy, following her mentor Scalia, she is a strict constructionist textualist and an adherent of original intent, thus handgun use, even by felons, is acceptable as if we were still in 1776.
No doubt she will also be well placed if rushed through quickly by November 5th under unorthodox emergency procedures on a carefully engineered Senatorial confirmation with limited scrutiny to oversee any electoral problems her mentor Trump has; or for that matter if he loses to assist in his probable declaration of a state of national emergency; followed by the Federal invocation of martial law to extinguish American democracy.
Her appointment signals not just the dying of the light, but, quite frankly, game over for American democracy, and perhaps global democratic values. This is a power grab that will take generations to undo.