Re-evaluating the Supreme Court in ACB’s confirmation

by Hannah Bernstein

On October 26, 2020, Amy Coney Barrett was confirmed as the newest Supreme Court Justice. What made her confirmation so controversial and must we re-evaluate our government in response?

As the Supreme Court is the highest court in our country, we must look back into the Constitution to see where the Court gains its authority. In Article III, Section I of the Constitution, “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Though the Constitution established the Supreme Court, Congress is the authority that decides how to organize it. In the Judiciary Act of 1789, Congress created a Supreme Court with six justices and established the federal court system. However, after the Civil War, the seats on the Court were fixed to nine seats: one Chief Justice and eight Associate Justices.

When the Supreme Court initially started, it was weak in comparison to the Court today. Not until Marbury V. Madison did the Courts establish their authority and Judicial Review.

Nowhere in the text of the Constitution are the Courts given the ability to declare a Legislative or Executive act in violation of the Constitution. Now, I do not think that every part of the Constitution needs to be followed to the exact wording of the text. However, it must be addressed as it connects to the idea of legislating from the Bench.

Legislating from the Bench is a term we use often and sometimes without consideration for what it means. It implies a justice system with two types of judges: one who merely interprets the law practice judicial restraint and those with political agendas who create law practice judicial activism.

Justice Barrett’s predecessor, Ruth Bader Ginsburg (RBG) was a justice known for practicing judicial activism. As a cultural hero who dedicated her legal career to fighting for women’s rights, equal rights and human dignity, she is arguably one of the most beloved justices in American history. One case she is well known for writing the dissenting opinion was the 2013 landmark Supreme Court case Shelby County v. Holder, where the court struck down two key provisions of the Voting Rights Act of 1965.

When Amy Coney Barrett was nominated and confirmed to the Supreme Court, it was a shock to the American public as she could be considered the Anti-RBG.

Justice Barrett is a well-known conservative Catholic who is famous for defending the dissenters of the Obergefell v. Hodges case that established marriage equality and a proud advocate for overturning Roe v. Wade. Her confirmation was shocking as she will practice judicial activism, but only for the benefit of a small group of people and not the entire American public.

Her confirmation also brings to question the power of the Supreme Court and the validity of the Constitution. As 2020 is very different from 1787, should we still interpret the Constitution for questions regarding women’s rights, the LGBTQ+ community, healthcare, etc?

My answer would be yes. Although the Constitution does not provide immediate or inherent answers to the questions we face in 2020, our Founding Fathers set up the Constitution to be the framework for our government. It is up to the people to use the set framework and build up a functioning government and society.

However, I must also note that the valid fears and worries regarding the consistent protection of our human rights should not be focused on confirmation of ACB as our Supreme Court nominations and confirmations are not in the hands of the People, but in Congress’s.

Our concerns should be focused on pressuring our representatives to end the bipartisan divide in Congress and demanding for them to focus on passing legislation and adding amendments that will permanently protect our rights, instead of worrying about vacancies in the Supreme Court.