By William Cohn, attorney and constitutional law scholar at New York University

The analogy of judges being like umpires calling balls and strikes has been used to argue that judges merely apply the law according to the rules, leaving no room for bias. The misleading nature of this claim has never been more apparent.

Objectivity in judging is a myth. As Justice Cardozo noted, “We (judges) may try to see things as objectively as we please, nonetheless we can never see them with any eyes except our own.” A test of principled judging is doctrinal consistency. As Ryan Grim and others argue, Judge Barrett fails that test, notably regarding the Voting Rights Act of 1965.

When Sonia Sotomayor said at her Supreme Court confirmation hearings that her experience as a Latina woman informs her judging, she broke the rules of the game and had to recant in support of the guise of neutrality. The charade continues.

Dahlia Lithwick notes that Barrett “has clothed herself in a cloak of neutrality” contending that this posture will free her to do “pernicious work that will undercut the very ideals she is sworn to uphold.”

Barrett proudly claims to be a constitutional originalist, as if this is beyond reproach, which it most certainly is not. Originalism is both historically and logically problematic. Purportedly constraining judges, it may actually serve to unleash them.

Ronald Dworkin’s responsibility theory posits that judging with integrity demands honest and transparent inquiry, analysis and reasoning. Dworkin asserts that any honest consideration of judging must recognize the centrality of interpretation.  Under the common law judges do make law, unlike the civil law tradition where law is “found”. The making of judicial law can be as corrupted as the making of legislation, and as unappetizing as seeing sausage made.

Rhode Island Senator Sheldon Whitehouse’s presentation on Dark Money shed light on the anti-democratic influences distorting the law. The Court lacks basic disclosure requirements fundamental to judicial integrity. Litigants appearing before the Court should wear badges demanding an end to the flow of dark money. As this would be disallowed, the public must fight secret plutocratic law.

The unprecedented rush to confirm Barrett denied an opportunity to fully investigate Barrett’s record and conflicts. It was pathetic that Senator Whitehouse could only conclude his remarks with a plea to Barrett to “please think about these things” when she is on the Court.  With hypocrite in chief Lindsay Graham presiding over Barrett’s confirmation hearing precedent and principle were, unsurprisingly, conveniently discarded.

Sandra O’Connor decried unseemly law, by which she meant that which went against public opinion. Today’s Court cares little about public sentiment as it routinely rules against it. When McConnell stole the seat from Merrick Garland in 2016 to install Neil Gorsuch in 2017 a nail was put in the coffin of the venerable Court. Brett Kavanaugh and Amy Barrett’s confirmation process further stained the Court. The disrespect shown to RBG following her death is abhorrent, and with Trump’s overt politicization of Barrett’s seat marks a new low point for the Court.

Right wing court-packing has been going on for decades, as has judicial activism by Republican appointed judges. Barrett is a prime example.

Serving oligarchs, the Republicans have installed judges to cement minority rule. 

Welcome to the new judicial order where stare decisis and neutrality are (ab)used as swords for the rich. Know the rules and play by them. Stop going to a knife fight with an olive branch. Pack the court if you can democrats. If you fail to do so you will be rendered impotent by the right wing activist federal courts. //www.takebackthecourt.today/antidemocracy-scorecard

Team Trump’s plan to steal the election using the Court to seal the deal is in plain sight.

In 2000, John Roberts, Brett Kavanaugh and Amy Barrett all worked for George W Bush to stop the recount. They may soon vote together to stop the actual counting. Senator Feinstein will surely thank them for their excellent leadership if they do.

Barrett’s cagey responses to the senate judiciary committee further expose the discrepancy between judicial theory vs practice. Her refusal to abstain from potential upcoming election challenges before the Court evince a false understanding of the recusal standard. Like her mentor Scalia in Bush v. Gore, she speaks only to actual bias, wearing her robe as a shield, ignoring that the standard for recusal is the appearance of bias. The purpose is to uphold public confidence in the independence and integrity of judicial decision making. There is now little reason for the people to have such confidence.

As the judiciary heads further to the right it is evident it no longer serves the values of the majority of the people. Equal justice under the law is now just a reminder of how wildly the federal judiciary misses the strike zone.

William Cohn is an attorney and constitutional law scholar at New York University