Scholars Fear a More Nationalist Supreme Court Under Barrett

Trump’s most enduring legacy might be the long-term repudiation of international law.

Supreme Court nominee Judge Amy Coney Barrett
Supreme Court nominee Judge Amy Coney Barrett testifies on Capitol Hill in Washington on Oct. 14. Ken Cedeno-Pool/Getty Images

With the presidential election just three weeks away, almost all the questions asked of U.S. Supreme Court nominee Amy Coney Barrett at her confirmation hearings this week have focused on hot-button domestic issues—especially Democratic concerns that she will fulfill President Donald Trump’s wishes and vote to overturn abortion rights, the Affordable Care Act, and same-sex marriage.

But though Barrett’s record on international issues is scant, some legal scholars fear that her impact will be just as lasting on America’s role in the global system. They believe that she will follow her mentor, former Justice Antonin Scalia, and tilt the court toward rejecting international law, preventing future presidents from unilaterally negotiating global agreements such as the Iran nuclear deal and leaving the fate of ongoing military campaigns entirely in the hands of the White House without legal restraint. 

Barrett herself, asked briefly by Republican Sen. Chuck Grassley in the third day of hearings Wednesday about the role of international law, expressed extreme skepticism about its utility in making any judgements on the court, saying, “I would never want to say never, because it’s certainly possible.” But she then asserted: “In my view the U.S. Constitution is the compact of the fundamental law of the American people” and should not be “controlled” by “the laws passed by other countries.”

“That’s an outrageous and incredibly disappointing thing for her to say,” said Karen Greenberg, a legal expert on national security and civil liberties at Fordham University. “It’s not about being beholden or subject to international law; it’s about recognizing internal covenants that the United States was one of the original designers of [such as the United Nations Charter]. It mischaracterizes the relationship between international law and U.S. law, and it affords another way of avoiding international obligations.”

Another prominent legal scholar, Harold Koh, agreed that Coney Barrett’s response appeared to betray some ignorance about how international law is deeply intertwined with U.S. policy. “Her errors are concluding that these concepts like equality or liberty are American property as opposed to values shared by many countries,” said Koh, a former legal advisor and assistant secretary of human rights at the State Department. “She also seems not to grasp how critical the role of the U.S. has been in making and shaping international law, assuming instead that it is somehow being ‘imposed’ on Americans, as opposed to being made by Americans.

“Until now she has been vague about her judicial philosophy,” added Koh, who is today the Sterling professor of international law at Yale University. “But most likely, Judge Barrett’s history as a scholar and a judge suggests that she will join the majority, nationalist group of justices who tend to defer to executive power, decline to treat international law as a significant constraint on national action, decline to exercise judicial power on international matters unless Congress has clearly so directed, decline to look beyond national law to foreign law for constitutional insights, and show little deference to the rulings of other international tribunals or bodies.”

That could roll back decades of progress on an array of human rights, international agreements such as the Paris climate pact, and other accepted U.S. obligations to the international community.

“On each of these points, she represents a dramatic shift from Justice Ruth Bader Ginsburg, who was a transnationalist justice, respectful of international and foreign legal traditions,” said Koh. 

What that might mean in practice is a court that over the long term spurns observance of global rules. 

“At a minimum, the Supreme Court can be expected to limit the constitutional power of the United States to enter into, or comply with existing, human rights treaties,” said David Golove, a specialist in the constitutional law of foreign affairs at New York University. “But the impact could be much broader, including, for example, calling into question the constitutionality of some environmental treaties.” In one such case in 2007, Massachusetts v. Environmental Protection Agency, an earlier, more liberal Supreme Court ruled that the EPA had the obligation to regulate greenhouse gases in case the Senate failed to ratify the Kyoto Protocol.

In an answer to a direct question at the hearings on Wednesday, Coney Barrett declined to say whether she believes global warming is man-made. Trump has consistently cast doubt on the seriousness of the climate change crisis

Though Chief Justice John Roberts has occasionally sided with the liberal side, and another Trump-appointed justice, Neil Gorsuch, might still prove a swing vote on some key decisions, a Supreme Court with a 6-3 conservative majority could also decide the policy toward national emergencies such as COVID-19 on First Amendment grounds. “We might well, for example, see the court take a more assertive position scrutinizing COVID emergency regulations on constitutional grounds, like freedom of religion,” Golove said.

The U.S. military’s never-ending anti-terrorism campaigns could be the most immediate victim of a new conservative court—leaving its legal context unresolved in the long term. If Barrett is confirmed as expected, along partisan lines, the court’s conservative majority will likely leave the fate of terrorist suspect detainees at Guantánamo Bay, Cuba—as well as other suspected enemy combatants—in permanent limbo. Just last month, a Trump appointee on the Court of Appeals in the D.C. Circuit denied that detainees have any due process rights at all. “It was a further step than we’ve ever seen before,” Greenberg said. 

The new court would also likely hold an expansive view of the 2001 Authorization for Use of Military Force that has been used by every president since George W. Bush to justify a virtually permanent war against terrorists almost anywhere. “Is it a law like the Bible, forever?” Greenberg said. “The idea of an ever-expansive war power doesn’t really jell.”

A 6-3 court with Barrett also threatens to narrow Washington’s concept of human rights. In July, Secretary of State Mike Pompeo delivered the report of the State Department’s Commission on Unalienable Rights, which sought to reduce human rights to the “founding principles” of the United States. It implied a retreat from human rights applied around the world, especially when it comes to abortion and reproductive rights, but also including treaties that support LGBTQ rights, the prohibition of torture, or ways to protect racial minorities, children, and people with disabilities from discrimination.  

“There has certainly been a significant push by Trump and Pompeo in particular to develop a hierarchy of rights, and the rights left behind are first reproductive and LGBTQ rights,” said Andrea Prasow of Human Rights Watch. She said the administration, using subtle legal arguments, is essentially trying to roll back international legal commitments made by Washington ever since the 1948 Universal Declaration of Human Rights. With Barrett on the court, that conservative goal could be in sight. 

In her writings as well as her testimony, Barrett has often seemed to question the validity and constitutionality of international law. In a 2010 scholarly article, “Substantive Canons and Faithful Agency, she argued that judges who “depart from the most textually plausible interpretation of statutory language function as something other than faithful agents of Congress” and are acting as “a protector of international law.” That, according to Koh, would put her in line with other conservative, nationalist justices like Clarence Thomas and Samuel Alito. 

Commenting on another case in 2013, she asked whether “the laws and traditions of foreign countries are fair game or out of bounds in the interpretation of our Constitution.” 

“Many conservatives are skeptical of international agreements across the board, as infringements of U.S. sovereignty,” Golove said. That’s one reason international treaties—which require two-thirds ratification by the Senate—have fallen by the wayside. In turn, Democrats have embraced executive orders as the only practical way for the United States to engage constructively with the world, as the Obama administration did with the Iran nuclear deal and the Paris climate agreement. But even that foreign-policy tool could be at risk in the next Supreme Court.

“It is certainly conceivable that the conservatives on the court could start to call these alternative mechanisms for making international agreements into question, with potentially monumental impacts on the nation’s foreign affairs,” Golove said.

The concerns aren’t limited to the world at large. Legal experts also worry Barrett could accelerate the decline of the norms of U.S. democracy, thus further damaging America’s place in the world. In hearings this week, Barrett refused to directly answer questions about the peaceful transfer of power—which Trump has suggested he might not honor. She also said she couldn’t answer whether Trump has the power to delay an election, even though the Constitution clearly gives Congress the power (under an 1845 law) to set the date of Election Day.

Barrett also avoided answering most questions about Republican efforts to restrict voting rights, and she hedged over how she might rule on the Affordable Care Act, LBGTQ rights, and, as a professed believer in the “right to life,” the 1973 Roe v. Wade ruling affirming abortion rights, though she pledged to keep “an open mind.”

She has repeatedly said of the late Justice Scalia, for whom she was a law clerk, “His judicial philosophy is mine, too.” Though she also said during the hearings she didn’t intend to follow Scalia’s thinking in every case, Barrett openly identifies herself as a “textualist” or “originalist”—meaning she will refuse to interpret the Constitution beyond what she believes it literally says. 

The irony is rich, Koh said. The Founding Fathers were deeply concerned with international law and America’s standing in the world. “Barrett often claims to be an originalist, which should mean she ought to be an internationalist, since our early American justices—John Marshall, John Jay, Oliver Ellsworth—were all also internationalists,” Koh said.

“But other claimed originalist justices have not carried through on their ‘originalism’ when it comes to showing a ‘decent respect to the opinions of mankind,’ in the words of the Declaration of Independence.”

Michael Hirsh is a senior correspondent and deputy news editor at Foreign Policy. Twitter: @michaelphirsh

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