Why are people protesting against Supreme Court nominee Amy Coney Barrett?

Question

I saw on the news that people are protesting against Supreme Court nominee Amy Coney Barrett.

I am not looking for any opinions, but would appreciate some background on these protests against her.

Answer 1

There are a number of reasons why people oppose Barrett, among them:

• Her stances on political issues: There is a fear that the bodily autonomy of women is under attack (see her stance on Roe v. Wade), as well as the human rights of LGBT+ people (see her stance on the rights of trans people and marriage equality), and that access to health care is in danger (see her stance on the ACA). Trump and the GOP specifically choose justices for those reasons:

  The GOP platform said Trump’s Supreme Court appointments would “enable courts to begin to reverse the long line of activist decisions including Roe, Obergefell, and the Obamacare cases.”

• Some have the impression that this is essentially a "stolen" seat. Republicans have blocked appointments by Obama for the supreme court - as well as for lower courts - with the reason being that appointments shouldn't happen during an election year. South Carolina senator Lindsey Graham, for example, said:

  "I want you to use my words against me," Graham said at the time. "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, 'Lindsey Graham said let's let the next president, whoever it might be, make that nomination.'"

• Trump has been very clear that he may not accept the election results and that he needs to seat a justice to successfully overturn the result of the election. Given Trump's authoritarian leanings, there is a fear of an anti-democratic coup. Barrett declined to commit to recuse herself from such a case.

Answer 2

There are several major reasons why various people would oppose her nomination. I'm afraid that no quantitative survey data available, but off the top of the recent news:

1. The procedure. Republicans took a huge criticism on their flip-flopping regarding the very fact of electing a SCOTUS nominee during the last year of presidency — the Republicans introduced a drastic change to the procedure in a similar situation in 2016 and now fail to stick with it. This has been extensively discussed in this question and its answers.

2. Hypocrisy. In 2016, Amy Coney Barrett herself spoke against filling a SCOTUS vacancy during an election year that she said could “dramatically flip the balance of power”. She specifically argued Merrick Garland could not be confirmed 8 months before the 2016 election because his centrist views were too different from Justice Scalia’s, "the staunchest conservative on the court" — source; video.

3. Possible failure to qualify as a judge. Recently, Amy Coney Barrett gave responses that show that she either has something to hide by lying, or, if she genuinely fails to know the core provisions of the Constitution of the USA, casts a serious doubt on her professional suitability as a layer, leave alone a SCOTUS member:

   • Judge Amy Coney Barrett has refused to answer the question about whether the Constitution gives the President the authority to unilaterally delay a general election under any circumstances. Instead, she said that she needs to study this issue, consult with her law clerks and colleagues. The U.S. Constitution (Article II Section 1) does not allow the President doing this, and it would be simply impossible for a "highly qualified judge" not to know this.
   • Judge Amy Coney Barrett refused (source same as above) to answer the question about whether it is legal to intimidate voters at the poll. Her response was “I can’t apply the law to a hypothetical set of facts.” Senator Amy Klobuchar (D-Minn) cited a U.S. Code article (Title 18, Chapter 29, Section 594) that calls for a fine, imprisonment or both for "whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote." Again, it is virtually impossible for a qualified judge not to know this.

4. Interpretation of the Constitution. Amy Coney Barrett is a strong supporter of Originalism, a concept of Judicial interpretation of the Constitution based on the original understanding at the time it was adopted.

   • People who oppose the Originalism (and lean to another Judicial interpretation) may not want Amy Coney Barrett a SCOTUS member because of the partisanship;
   • People who support the Originalism may also believe in some its weird implications, like impossibility of appointing a female judge; see, for example this Hillary Clinton' tweet:

   

5. Her other actions may produce a strong opposition as well:

   • An indicator of Judge Amy Coney Barrett's extreme conservatism is her position in the Court of Appeals for the Seventh Circuit in the "employee versus employer" cases, in which she sided with corporations over people 76% of the time;
   • Judge Coney Barrett declined to commit that she'd recuse herself on a possible election dispute case or in the California v. Texas Affordable Care Act case.

Answer 3

The real answer to why there are protests is "because she's being appointed by a President of the opposite party of the people who are protesting." This happens pretty much every time anyone is nominated to the Supreme Court.

For example, even a quick search can find protests after the nominations of each of the last 6 Supreme Court justices to be confirmed (that is, all of the confirmations that took place during the age of widespread Internet usage):

Kavanaugh
https://www.cnn.com/2018/10/04/politics/kavanaugh-protests-washington/index.html

Gorsuch
https://www.politico.com/story/2017/03/neil-gorsuch-liberal-protesters-scotus-235659

Kagan
https://wach.com/news/local/tea-protesters-rally-against-kagan-nomination

Sotomayor
https://www.rollcall.com/2009/07/13/four-protesters-arrested-during-sotomayor-hearing/

Alito
https://womensenews.org/2005/11/alito-nomination-spurs-prayers-protest-over-roe/

Roberts
https://www.cnn.com/2005/POLITICS/09/12/roberts.hearings/

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Particular issues that protesters cite in regards protesting protesting Barrett's nomination are:

1) She's viewed as an originalist

Originalists believe that the Constitution and laws should be interpreted according to the original intent of those who wrote and ratified or passed them. Leftists in the United States tend to oppose originalism and prefer instead to nominate judges who believe that the meaning of a portion of the Constitution or law can change over time without actually being legally changed by subsequent laws or, in the case of the Constitution, the constitutional amendment process.

Constitutional amendments in particular require widespread consensus that the change in question needs to be made. Amending the Constitution requires either:

• Two-thirds of both houses of Congress propose the amendment or
• Two-thirds of all state legislatures call for a convention to propose the amendment

And

• Three-fourths of all states ratify the proposed amendment

That's obviously (and intentionally) a very high bar to set for changing the Constitution. So, it's much easier to appoint judges who will interpret it to mean something other than it was originally intended to mean rather than formally changing it to the desired meaning.

Inherent to the nature of liberalism or progressivism is the desire for change. Thus, liberals tend to prefer loose constructionist judges who believe that the Constitution should be interpreted in view of the contemporaneous views of society rather than originalist ones who believe it should be interpreted according to its original intent, as this is a much easier way to effect change than forming the high degree of consensus required to actually legally change the Constitution.

2) Anger over hypocrisy with respect to the Garland nomination

A major point of complaint is the Senate Republicans' hypocrisy in regards to the nomination of Barrett in view of the reason they gave for blocking the nomination of Merrick Garland by President Obama in 2016.

In 2016, Senate Republicans blocked President Obama's nomination of Merrick Garland to the Supreme Court saying that the next President should be able to choose the next justice since it was a Presidential election year. In particular, they cited then-Vice President Joe Biden's own statement on the matter from during the 1992 election year when Democrats controlled the Senate, but the President (Bush) was a Republican, where he had called for the President to not nominate and the Senate not to consider a Supreme Court nomination during the election season if a seat became open. Ultimately, no seat opened up in 1992, but one did in 2016 and the Republican-controlled Senate prevented President Obama from filling it, allowing President Trump to do so instead.

Of course, now that same group of Senate Republicans is confirming a justice nominated by President Trump to the Supreme Court, thus Democrats are protesting over their hypocrisy.

3) Justice Barrett is a conservative Christian.

In particular, she opposes abortion. Abortion is currently legally considered a constitutional right in the United States as the result of a series of Supreme Court rulings from several decades ago, most famously Roe v. Wade. Conservative Christians in the United States generally oppose abortion and most believe that Roe v. Wade and subsequent decisions affirming a Constitutional right to abortion should be overturned, believing that those rulings were not actually based on the original intent of any part of the Constitution. Liberals and most Democrats, on the other hand, tend to support having a right to abortion and want the decisions to stand. Thus, they oppose (and protest) the nomination of judges who they think might be likely to overturn them.

Answer 4

Why are people protesting against Supreme Court nominee Amy Coney Barret

People are protesting her because they feel her nomination is the second illegitimate nomination Trump has had. When Antonin Scalia died in March of 2016 republicans broke 100 years of precedent and claimed 8 months was too close to the election to hold hearings and confirm President Obama’s choice. This choice which by precedent should have been made by Obama became President Trump's first Supreme court nominee. More recently when RBG died a few weeks before the election the Republicans again break with 200 years of precedent, and their own 3 year old previous position, and holding hearings literally while people are voting.

These two “stolen” seats by democratic reasoning; give Republicans a 6-3 Supreme Court advantage and threaten to repeal many democratic wins for the last few decades.

This will ultimately force the next Democratic president if he controls the senate and House to likewise break precedent and pack the Supreme Court to reverse the GOPs gains. Which has its own problems for the nation.

Some Dems are upset with the short sightedness on the part of the GOP which brought us to this point and are taking it out on the Jurist.

From the Comments

@eyeballfrog
The idea of two seats being stolen is self-contradictory, because the argument in favor of one being stolen is an argument for the other being legitimate.

Not at all. There were two different precedents broken. There was a precedent for confirming Justices in the last year of a President's term in office, just not within 3 months of the election.

Examples of Nominations during an election year, just not within 3 months of an election, paraphrased from Scotus Blog:

• 11 Months before the election, November 30, 1987, President Ronald Reagan nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Lewis Powell.
• 9 months before the election, February 15, 1932, President Herbert Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes
• 10 months before election, January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on January 2, 1916
• 4 months before an election on July 14, 1916, Wilson nominated John Clarke to replace Charles Evans Hughes
• 8 months before the election, March 13, 1912, President Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan,

There was another older precedent in not confirming a Justice in the last 3 months prior to an election regardless of who controls the senate. Trump will be the first President in 200 years to nominate a Supreme Court Justice this close to an election. ( First ever to nominate during the election as about 25% of the votes some 30 million have already been cast ).

• When Sherman Minton retired from the Supreme Court Oct 15, 1956, President Eisenhower waited until after the 1956 Presidential elections to nominate William Brennan on Jan 14, 1957.
• When supreme court justice Roger B. Taney died Oct 12, 1864, 27 days prior to the election; Abraham Lincoln did not nominate his successor until after the people had spoken. Lincoln went on to win the Nov 1864 presidential election and nominated his secretary of Treasury Salmon Chase to become chief justice Dec 1864.
• When Robert Trimble died August 25, 1828, John Quincy Adams did not appoint a successor until after the 1828 election when he nominated John Crittenden Dec 17, 1828.
• When supreme court justice John Jay resigned from the court June 29, 1795, President Washington did not appoint his successor until after he had won the Nov 1795 election, nominating John Rutledge Dec 10, 1795.

Answer 5

The main reason that she in particular is being protested - beyond her views (which, while opposed to the protesters' views of course, are not particularly interesting or extreme for a Republican), and even beyond her election year nomination so shortly after Garland's denial in 2016 - is that she is replacing a liberal justice, and thus represents a significant change in the ideology of the Supreme Court.

Prior to Ruth Bader Ginsburg's death, the court had 4 Liberal justices and 5 Conservative justices, but one of those Conservative justices has played the role of moderate for the most part, and rulings have fallen on either side of the divide for the most part - undoubtedly more Conservative leaning than many would prefer, but many significant rulings have fallen the way of the Liberal justices over the past few years.

Now, with a 6 justice conservative majority, and with 5 of those justices being very solid Conservative voices, any politically charged ruling is seen as being much more likely to fall on the Conservative side.

This shift in ideology may be one of the most significant jumps in the Court's history; it is similar to that of Clarence Thomas replacing Thurgood Marshall, which was the last major shift in Supreme Court ideology, and in fact the last time that a Republican appointee replaced a Democrat appointee.

This is the reason for the particular focus on this justice - perhaps even more than Kavanaugh, despite his personal failings; he was replacing Anthony Kennedy, a moderate but Conservative Justice.

Note that this is also likely part of the reason the 2016 Senate refused to even consider Garland; he would have replaced Antonin Scalia, one of the more Conservative Justices.

Answer 6

There are many fine answers here, but the main point that many are missing, and which might not be obvious to an external observer, is that filling the Supreme Court seat is important. If you are not familiar with United States government, the Legislative Branch (the Senate and House) create new laws, the Executive Branch (headed by the President) enacts the laws, and the Judicial Branch (headed by the Supreme Court) rules on whether new laws violate old ones. If the Supreme Court is not impartial, then even if a political party no longer has a majority, their nominees can block new legislation from the new majority once it's passed - even if they have no power in the Legislative Branch!

To put it another way, assuming each branch of government has roughly equal power, then a Supreme Court seat is roughly as powerful as 5.5 senators, or nearly 50 representatives from the House. Furthermore, it's extremely difficult to recall a Justice. Removing a Justice has never been done. Appointing a Supreme Court judge is an extremely momentous decision, of equal if not greater weight to some of the most massive legislative decisions.

Putting aside all the other points about flip-flopping Senate Republicans and Barrett's opinions, whoever ends up in that seat has a good chance of being the deciding vote on many decisions, potentially for decades to come, many of which directly affect the average American. The big three that keep being mentioned are LGBTQ+ rights, women's rights to bodily autonomy, and healthcare. Each of these issues could potentially be decided by her, so, no matter what else, people are protesting her because she will have a lot of power. There were protests when each of those laws was enacted, of course there will be protests when they are threatened with being scrapped.

Answer 7

The Supreme Court has become largely politicized over the last few decades. When you strip away all the noise, the reason why some people are protesting this nomination boils down to the fact that their side (Democrats) did not get to appoint the next judge and this particular judge's political views do not align with theirs.

Of course, they will not flat out admit this, so a set of cover-up reasons are created instead, mainly:

Republicans' hypocrisy: During Obama's last year in office, Republicans argued that no president should get to put a judge in the Supreme Court during an election year, and used this to justify their blocking of Obama's nominations. Of course, they didn't have to come up with any justifications; they had complete authority to block Obama's nominations due to the simple fact that they controlled the Senate. Now, Republicans have reverted their argument, and have decided to nominate this judge on an election year. Again, they have the authority to do this due to the fact that they still control the senate, but their actions does show a level of hypocrisy.

To summarize, it all comes down to politics. Some people don't like this judge's politics and the president nominating her, but "I don't like them" does not make for a good argument, so instead they point out to Republicans' hypocrisy from the past to protest the nomination. That doesn't make for a good legal argument either, since everything Republicans have done they are legally allowed to do, but to some it might make for a good moral argument at least.

Answer 8

The Supreme Court is part of the judicial branch of the US government; its role is to interpret the laws as passed by the legislature and enforced by the executive branch. However this role has been distorted over the past century so that the Supreme Court has become the means for overturning the will of the people as expressed by laws passed by their elected representatives. It is easier for a few people to make changes via Supreme Court activism rather than the difficult work of convincing enough of the nation to change the laws in their states and via Congress.

Those with this political strategy fear that originalist judges will frustrate the imposition of their will on the rest of the nation. And so, when they do have the power to nominate and confirm Supreme Court justices, they say it is valid for them to nominate judges that will carry out their desires; and when they do not have that power, they say those who do have the authority, must not exercise it, in hopes that the power will soon return to their hards.

I think it is important to point out that in recent history, there was only this one case of a Democratic presidential nominee not approved by a Republican Senate; there have been five (5) Republican nominees that were not approved (either rejected, or withdrawn because their rejection was indicated in advance).