By Amy Coney Barrett
The First Amendment to the American constitution protects freedom of religion, freedom of speech, freedom of the press, freedom of assembly and freedom to protest. These “five freedoms” must be learnt to pass a US citizenship test.
Last week, in a Senate Judiciary hearing, Amy Coney Barrett was unable to name all five.
Unsurprisingly, for someone supported by the right-wing Republican party, it was the freedom to protest that she forgot. If she were applying to be a citizen of America, she would be rejected.
Instead, barring an act of God, she will be appointed a Supreme Court justice by the Republican Senate in the weeks to come.
Aside from being under-qualified at best, her historical judgments, statements and associations make it reasonable to suppose that she believes global warming is a fiction, abortion should be criminal, and that government health care is unconstitutional. In a Senate hearing, she refused to state her views clearly on any of these issues.
In this, she followed the playbook of alleged rapist Justice Kavanagh, whom US President Donald Trump’s Republicans appointed two years ago.
The US Supreme Court is the highest court in the country. Yet unlike equivalent courts, its justices are appointed by politicians. They are appointed for life and, as we see with Coney Barrett, supreme legal knowledge and experience is not a prerequisite. Sharing the politics of the party in power is.
One might consider it closer to the Supreme Council of Iran than our Constitutional Court. The US Supreme Court allows an administration’s influence to stretch decades beyond the time that voters have thrown them out.
In this case, craven behaviour on the part of the Republican senate will likely mean an entrenched radical-right wing majority on the court for decades to come.
Is there nothing that can be done? Not without undermining the so-called integrity of the court.
In 1951, apartheid monster DF Malan faced just this dilemma. His government introduced the Separate Representation of Voters Act, which removed the right of so-called coloured voters to elect members of the House of Assembly.
But the Appellate Division, the highest court in South Africa, declared the act to be null and void. So Malan passed a new law allowing Parliament to become a court so that it could overturn rulings it did not like.
When this ruse reached the Appellate Division, it was thrown out on the basis that this was still Parliament, just using another name (“a Parliament dressed as a court”, as Monty Python might put it).
Then Malan found another solution, one that (sadly, in that case) worked. He doubled the size of the court and made judges of people he trusted to support his racist policies.
Today, heirs to Malan’s bigoted way of thinking control the US government and the US judiciary. The people can vote to chuck out the government, but not to remove ultra-conservative judges, who can strike down any laws they dislike, no matter how popular.
If Joe Biden becomes president and the Democrats win the Senate, Biden must (ironically) become the heir to Malan’s judiciary knobbling, and fill the Supreme Court with new liberal justices, diluting Trump’s appointees. Only this will free America of its ayatollahs.
I have no qualms with this. Too often, as we watch racists, fascists and kleptocrats abusing systems, we cling to the niceties of fair play and norms, even at the expense of our values. The rule of law should not be upheld if that law is racist or is made against the people it is meant to protect.
To fight a judiciary who share Malan’s political tendencies, anyone who believes in the rights of women, the right of all to live with dignity and, yes, the right to protest, should hope that Biden, if he wins, has the guts to follow Malan’s playbook.
* Donen SC is a legal practitioner and listed counsel of the International Criminal Court
Cape Times