A Lawyer Looks Critically at the Amy Coney Barrett Hearings

I have addressed the topic of the appointment of Amy Coney Barrett’s to the supreme court in several recent DM’s.  Peter Gabel is a thinking lawyer who is unafraid to question the values of the legal profession today.   Indeed, he is a champion at criticizing his own profession and offering good medicine for its healing.  In a recent issue of TIKKUN magazine he offered what I consider a brilliant analysis of the issues involved in the appointment of Barrett from the point of view of a lawyer.

Peter Gabel, J.D., Ph.D. Photographer unknown; from his Facebook page.

Gabel says that the “originalism” philosophy of Barrett and her mentor, the late judge Antonin Scalia, is all about going back to 1789 to find the original intent of the “founding fathers.”  Gabel reports Scalia saying in a speech to the Federalist Society that

…there is no way we can know what each other thinks and agrees to besides attributing an objective meaning to words that people state when they write them down.

Comments Gabel:

He believed there was no binding moral claim that we have upon each other that can shape constitutional interpretation beyond the special words written mainly in the 18th century.

October 2020 Poll by Kaiser Family Foundation, from “5 Charts About Public Opinion on the Affordable Care Act and the Supreme Court” on KFF.org

To me this underscores what most unnerved me as I did my best to listen to Barrett for three days of testimony before the Senate: I had no sense that she was the least way affected by the many appeals to persons who would suffer (120 million with pre-existing conditions for a start) if the Affordable Care Act is struck down a week after the election by the Supreme Court.  Nor did I see any response to Senator Booker’s question about studying black history or black experience with the law.  Barrett answered she had never studied it. 

Gabel is throwing light on this situation—why is she so unmoved by stories of effects of legal decisions on millions of people?  Women and reproductive rights, rights to make their own decision about their bodies?  Those without health care?  LGBTQ people who want to marry whom they love? 

“I Am A Man.” Protesters in the 1968 Memphis Sanitation Strike. Photo posted to Flickr by bswise.

Because her mentor says there is “no binding moral claim that we have upon each other that can shape constitutional interpretation beyond the special words written mainly in the 18th century.” 

Have we advanced nowhere as a people through a civil war, the 14th and 15th amendments, civil rights laws and the rest?  Maybe evolution doesn’t exist after all.  We are doomed to live in the past.

Gabel makes the substantive point that

As the Constitution of the U.S. was being drawn up, Abigail Adams asked her husband, founding father John Adams, to “remember the ladies” and grant them a measure of equality under the law. He laughed at the idea. Video uploaded to YouTube by HISTORY.

this worldview means that we human beings today must determine our relations with each other according to what a group of mainly 20 and 30 year-old white men, mostly wealthy slaveholders, thought were good and acceptable social relations about 250 years ago.

He raises the question about whether we are stuck in a “fetish” for our “founding fathers.”   Nostalgia writ large.  Maybe this is where the slogan “Make America Great Again” comes from.  Let’s all live back in 1776, dust off our muskets, and go to work.  To be continued.

See: https://www.tikkun.org/amy-coney-barretts-originalism

See Matthew Fox, The Reinvention of Work.

Banner Image: “Don’t Take My Care.” Rally at the US Supreme Court in Support of Obamacare during King vs Burwell hearings. Iphone photo uploaded to Flickr by LaDawna Howard.

What conclusions do you draw from this “originalist” philosophy that we all need to look back to 1789 in preference to the suffering of the present for our answers?  Are we stuck in a “fetish” to our “founding fathers,” most of whom were slave owners?  What follows from that?

Natural Grace: Dialogues on Creation, Darkness, and the Soul in Spirituality and Science 
by Matthew Fox and Rupert Sheldrake

Natural Grace, a 208 page inspired dialogue between theologian Matthew Fox and scientist Rupert Sheldrake, unites wisdom and knowledge from unconventional angles. Considering themselves heretics in their own fields, Matthew and Rupert engage the conversation from postmodern and post-postmodern perspectives, deconstructing both religion and science—while setting the foundation for a new emerging worldview. Having outgrown the paradigms in which they were raised, both Fox and Sheldrake see it as part of their life missions to share the natural synthesis of spirituality and science rooted in a paradigm of evolutionary cosmology.

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4 thoughts on “A Lawyer Looks Critically at the Amy Coney Barrett Hearings”

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    Thank you for this analysis! I would not know any of this without your Daily Meditations; it’s amazing how we can be learning together and deepening our knowledge of our current reality at the same time as we are opening to the still small voice of divinity within us.

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    Rather astounding and along a similar vein is the reason given by many fundamental evangelical so called Christians for voting for Trump. It is their anti-abortion stance! With all the life threatening issues at hand, remaining stuck in an adherence to an issue of relatively minor importance carries not only a high degree of narrow mindedness but remnants of a “fetish” mentality.

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    It seems to me that the reverence for the “founders” and their words comes from the same place as reverence for the literal Bible, a recipe for authoritarianism and disaster for many–as we have seen with the Supreme Court decisions on equating money with free speech–fostering even more political greed and corruption–the decision to exempt companies from paying for contraception on “religious” ground–the homophobia fostered by “religious” prejudice. Religious and political fundamentalism feed on each other and are extremely harmful to a democracy, in my opinion. From mutterings from 2 judges and her attitudes, I fear that LBGTQ rights are in peril–reminding us that injustice for a few is injustice for all. Thanks to Matthew Fox, as always, for sounding the alarm.

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