Toward the end of the third day of hearings to consider the nomination of Amy Coney Barrett to the Supreme Court, Sen. Kamala Harris asked the judge three simple questions: Is the coronavirus infectious? Does smoking cause cancer? Is climate change happening?
The questions had to be simple ones, because the judge had spent most of her three days patiently, gratingly, explaining to the senators why it would be inappropriate for her to say anything about anything during these hearings. Barrett stuck with a consistent refrain of “Any questions that call for an abstract legal opinion are not ones that are appropriate for me to give either as a sitting judge or as a nominee,” as she refused to affirm that almost any decision beyond Brown v. Board of Education is a binding and eternally secure super precedent (she agreed that Loving v. Virginia also is fully settled law, as an extension of Brown, and Marbury v. Madison, she’ll give us that one too).
Asked about Griswold, Roe, Obergefell, Sebelius—the cases establishing the right to contraception, the right to abortion, the right to gay marriage, the legality of the Affordable Care Act—Barrett adopted a posture of neutral detachment, which was effectively hyperpartisanship. She could not discuss these precedents, she said, because even though they have been incorporated into everyday law and the public’s expectations, they could still possibly be challenged by some people who don’t like how they went. Is Barrett among those some people? We are meant to understand that even though that’s why she’s there, it is offensive to her for anyone to suggest she would be. She’s independent.
What Barrett treats as undecided matters, which her personal judicial outlook may or may not convince her to reconsider, are really rules for how we are allowed to live our lives. Democratic senators attempted to make this part of the hearing, bringing in poster boards of photos of constituents with pre-existing conditions who might die if they are denied access to health care, telling stories of women who were raped and needed abortions, explaining the fear of couples who have married and set their whole lives up based around the belief that the discrimination they once suffered would no longer exist.
It is hard to bring humanity into the hearing room, though. We all know that these hearings mean nothing—no matter what Amy Coney Barrett could say during them, Mitch McConnell has the votes to confirm her. He had them before she was named. The performance we’ve been witnessing is not about this seat, it is about the seats that might be filled after this one is. It’s a fight for the Senate now. The utility of the Supreme Court hearing ended when Brett Kavanaugh screamed at America, displaying a temperament that showed he was wholly unqualified to be a judge and was rewarded with a lifelong seat on the highest court in the land.
These hearings haven’t had the same kind of drama. Barrett is, intentionally, a different kind of nominee—the woman Donald Trump was saving to replace Ruth Bader Ginsburg. She is there because she will quietly overturn—or more likely slowly undermine—Roe while being a shining example of what motherhood can be for the women are good enough.
So here is how Amy Coney Barrett answered Kamala Harris’ basic questions about simple facts. Yes, the coronavirus is infectious, Barrett replied. Smoking does cause cancer—she couldn’t quite bring herself to say that outright, but she admitted that every box of cigarettes contains a warning that says so. Is climate change happening, and threatening the air we breathe, the water we drink?
“Again, I wondered where you were going with that,” the judge replied. “You asked me uncontroversial questions, like COVID-19 being infectious or if smoking causes cancer and you’re trying to solicit to an opinion from me on a very contentious matter of public debate and I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial because it is inconsistent with the judicial rule, as I explained.”
As always, the tell was to watch not what Barrett says, but what she refuses to answer. When she does that, she supplies this reason—that it is inappropriate for her to weigh in on topics she might have to rule on, that she can’t express political views—but what she is really doing is marking which subjects she thinks are fair game. That includes Griswold, Roe, Obergefell, Sebelius, but it also includes whether the president can behave as an autocrat, whether family separation is immoral, and, apparently, whether climate change is happening.
One of the tragedies of the last four years has been watching the spread of disinformation, of lies and conspiracy theories, be treated more and more seriously because it has been decided that someone believing them—maybe even the president—makes them legitimate enough to be worth considering. That is what Barrett was trying to posit here, about climate change—that because some people don’t believe in it, it is a controversial issue and we need to consider both sides.
But that gets—has always gotten—the story of climate change wrong. Climate change is not a controversy because some people believe it and other people don’t and we are merely trying to sort out if it is really happening. Climate change is destroying the world as we know it, not to mention ruining Americans’ lives, and even as that happens, there are numerous companies and people with a strong financial interest in doing nothing about it who have undertaken a coverup and broad effort to persuade us that it is not happening, that we can do nothing about it. In acceding to the “controversy” label, Barrett made it quite clear whose side she is on.