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Erwin Chemerinsky: Evidence: Court is ‘partisan hacks’

Erwin Chemerinsky: Evidence: Court is ‘partisan hacks’

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Erwin Chemerinsky

If Supreme Court justices don’t want to be seen as “partisan hacks,” they should not act like them.

In a speech last week at the McConnell Center at the University of Louisville Law School, Justice Amy Coney Barrett said, “This court is not comprised of a bunch of partisan hacks.” She added, “Judicial philosophies are not the same as political parties.”

Setting aside the irony of uttering these statements at an event honoring Sen. Mitch McConnell, who blocked the confirmation of Merrick Garland to the court and rushed through the confirmation of Barrett precisely because of their ideologies, the reality is that time and again the court’s Republican majority has handed down decisions strongly favoring Republicans in the political process.

Does Barrett really expect people to believe that is a coincidence?

In the same speech, Barrett reiterated that she is an originalist, one who believes that the Constitution must be interpreted to mean what it might have meant at the time it was adopted. Yet not one of the court’s decisions about the election process favoring Republicans can possibly be defended on originalist grounds, which shows how wrong her claims really are.

In a series of rulings, with all of the Republican-appointed justices in the majority and the Democratic-appointed justices dissenting, the court has strongly tilted the scales in elections in favor of Republicans. In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15-to-1. There is no plausible argument that the original meaning of the First Amendment included a right of corporations to spend unlimited amounts in election campaigns. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country.

In decisions in 2013 and this year, the court’s conservative majority eviscerated the protections of the 1965 Voting Rights Act in a manner that helps Republicans and hurts voters of color and Democrats.

Conservative justices, who say they focus on the text of the law in interpreting statutes, created limits on the reach of the Voting Rights Act that are nowhere mentioned in it. The result is that the laws adopted by Republican legislatures in Georgia, Florida, Texas and other states are now far more likely to be upheld.

In these and other cases, the Republican justices changed the law to dramatically favor Republicans in the political process. Barrett’s protest against the justices being seen as “partisan hacks” rings hollow when that is what they have become. And it is risible to say that “judicial philosophies are not the same as political parties.” I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.

Supreme Court decisions always have been and always will be a product of the ideology of the justices. No one — least of all a Supreme Court justice — should pretend otherwise.

Erwin Chemerinsky is dean of the UC Berkeley School of Law.


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