This Is What It Feels Like to Live Under Minority Rule
This Is What It Feels Like to Live Under Minority Rule
Dahlia Lithwick
The powerlessness is the point.
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.
More: https://slate.com/news-and-politics/2020/10/minority-rule-exhaustion-powerless.html
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