When Judge Amy Coney Barrett was being vetted for her lifetime position on the highest court in the land, she declined to answer even straightforward questions about presidential powers and voter intimidation. She declined to give serious responses to the follow-up Senate questionnaires probing even the simplest legal issues. She would not say, for instance, whether it’s a crime to vote twice, or whether Article II allows Trump to “do whatever I want,” or whether a judge’s ethnic or racial heritage constitutes bias. She wouldn’t answer questions about whether women seeking to terminate their pregnancies could face capital punishment.
The refusal to answer even the simplest yes/no questions about what black letter law means, and who it binds, has the effect—intentional or not—of unsettling what was once widely accepted and understood. It’s the judicial equivalent of “flooding the zone with shit“ and the result is the same when it’s done in law as it is when it’s done in media—it renders all that was known to be certain as indeterminate and up for grabs. It puts us all at the mercy of powerful deciders and consolidates the power to decide those newly open questions in an authority figure. It recalibrates both truth and power as emanating from someone else.
It’s hardly surprising that Barrett won’t tell us what she thinks of even settled constitutional cases—including, for example, the long established right to birth control. There’s no reason for her to enlighten us. She tells us only that for all past and future disputes, she will decide something fairly. We are instructed to trust her without any indication that she trusts us, or even trusts what has come before. Indeed, she has taken the position that what judges believe matters more than precedent anyhow. So we have to just trust her, even as we are still learning new information about her. Since her confirmation hearing alone, we have discovered that Barrett sat on the board of a school that turned away same-sex parents and that Barrett’s church has a history of sexual abuse of young women that was suppressed. None of the new information about her is meant to matter because all information about her is immaterial. Our judgments are immaterial, while hers are to be eternal. That is what we have learned during these hearings: Her opinions matter so much, and ours so little, that we don’t even deserve the courtesy of being told what she thinks before she ascends to the bench.
I have been thinking a good deal about the creeping cynicism that comes with this kind of powerlessness. And it is easy to feel powerless when you are constantly being told that the powerful will decide what matters, and also that they alone will determine what you can know about that decision. The stripping of power is part of the project. Senate Democrats never had any real power to stop the coronation of Amy Coney Barrett, but when they did try something—boycotting Thursday’s Judiciary Committee vote on Barrett—Lindsey Graham changed the quorum rules to push the vote through regardless. Before her 7th U.S. Circuit Court of Appeals seat is even empty, the White House has announced a nomination to fill it, just like the GOP announced that it had the votes to confirm a judge before she was even named. Her name was extraneous information for us, because we were powerless to stop the nomination. It’s hard to know what to do in the face of this kind of behavior that kneecaps opposition and grabs power wherever possible. It leads to the sense that perhaps one should do nothing.
It’s increasingly clear that the U.S. Supreme Court, which will be newly reconstituted just a week before a federal election in which more than 50.3 million Americans have already cast ballots, will decidedly not be weighing in on the side of the right to vote nor will it be expanding the right to vote. It turns out the Supreme Court has many more options to interfere with a free and fair election than many of us previously understood, and also the power by which to do so. Federal judges around the country are ruling against efforts to make voting easier, whatever the merits.
It’s easy, in the face of all of this degrading devaluing of majority opinion, to want to tune out—to look at everything happening to undermine the will of the majority and your own power to cast a vote and say “whatever.” And if you find yourself face-planting into a pit of whatever, you’re certainly not alone. But your whatever is in fact the mirror image of what Amy Coney Barrett has now told us about the rule of law. Whatever is what Lindsey Graham—who asked us to hold him to his pledge about not seating new justices before an election—has done with Ruth Bader Ginsburg’s Supreme Court seat. To answer him in kind is to accede to that logic. Whatever is the nihilism they want to seed in the world. The response to their whatevers just cannot be more of the same.
Even though she didn’t answer any of her questions, we know who Barrett is and what she will do on the court. She is exactly who she has always been, who she was seated to become, and if you are worried for your children, for the planet, for the future of anti-racism and LGBTQ rights and voting rights, your worry is not misplaced. Barring court reform, the coming years will be marked by attacks on government agencies, court-endorsed rollbacks of progressive gains, and a steady series of wins for business, oligarchs, and inequality. It will come dressed as neutral “originalism,” but it will be neither neutral nor originalist. And as Adam Serwer brilliantly details, this is not simply a conservative project; it is a project to beat back changing demographics and to suppress the power of the majority. The whatever that powerlessness engenders is a feature, not a bug, of the conservative legal movement’s efforts to tell majorities that they are of no moment.
Like Barrett’s appointment, the project of Donald Trump’s entire presidency is to remind you that you don’t have a say in your governance. And because you don’t have a say, you don’t need any actual information from which to decide. This is what we learned again last week in an interview with CBS’s Lesley Stahl in which Trump announced that he won’t disclose his new long-promised health care plan to protect Americans dying from a pandemic until after the Supreme Court strikes down the Affordable Care Act. It doesn’t matter what his new plan is, anyway, he implies. The very definition of flooding the zone with shit is that nothing matters, because you have no choices left to make. That is because the new justice, who will be elevated without a hint of popular consensus will—as he has pledged—vote to dismantle the ACA without a hint of popular consensus. You don’t need to know about the new plan because you don’t have a say. Mike Pence has no obligation to answer sober questions. Your very powerlessness is the point. The cruelty is the fringe benefit.
Rule of thumb? If nobody in any position of authority feels the need to provide information, it’s a decent bet you aren’t in a functional democracy anymore. And I am not here to tell you how to fight the cynicism that comes with being lied to or told you can’t change anything. I am just here to note that the inchoate rage and despair are real, and that even the possible resounding defeat of Lindsey Graham in his race for his Senate seat may not be enough to cure it. I am also here to remind you that some of the reflexive reaction to the daily reminders of your own powerlessness—including your possible hopelessness, blame-shifting, and the ritual saying of “who cares”—really is the reaction they are trying to elicit. It is the object of the exercise. You’re now in the autocracy trainee program. Mitch McConnell’s court coup is designed not just to decrease your political power but to teach you that you should expect yet more political powerlessness. That is how they are trying to ensure that even though there are more of you than there are of them, it doesn’t matter and they still get to call the shots.
That’s where the fight lies. In understanding that however systemic the suppression of truth and trust might feel, there are still more of you than there are of them. The effort to say you are nothing and deserve nothing isn’t actually erasure. It’s actually their fear showing. And that fear in turn suggests that you still have more power than you may know.
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