Amy Coney Barrett Takes Aim at Voting Rights

(Bloomberg Opinion) -- When you are a conservative judge seeking a seat on the U.S. Supreme Court, you do what Amy Coney Barrett has done: You audition. You deploy coded language that may mean little to most Americans but means a great deal to conservative elites.

Just as the anti-abortion movement is thrilled at Barrett’s signals on Roe v. Wade, and the Chamber of Commerce likes the cut of her corporate jib, Barrett has given the gun lobby cause to believe that she will put its interests ahead of public safety.

Barrett’s flare to the gun lobby is her dissent in Kanter v. Barr, a 2019 case in which she wrote that a ban on gun possession by nonviolent felons was unconstitutional. In her opinion, Barrett described gun possession as an “individual right,” whereas voting or jury service were “civic rights.” Though she didn’t state it outright, it seemed civic rights occupied a lower constitutional perch. That’s true if you believe the 15th and 19th amendments are lesser components of the Constitution than the 2nd Amendment.

At Barrett’s confirmation hearing on Tuesday, Senator Dick Durbin, Democrat of Illinois, had an interesting line of questions about her views. “You’re saying that a felony should not disqualify Ricky from buying an AK-47, but using a felony conviction in someone’s past to deny them the right to vote is all right?” he asked.

Barrett responded that states have the power — although she used the word “freedom” — to deny felons the right to vote. “I expressed no view on whether that was a good idea,” she added.

Durbin pointed out that more than six million Americans, a disproportionate number of whom are Black, can’t vote because of a felony conviction. He cited the racist roots of laws disfranchising Black Americans after Reconstruction, and the deliberate manufacture of felony convictions to deny minority rights. “I think the right to vote should be given at least as much respect as any Second Amendment right. Do you?” he asked.

Barrett cited the Supreme Court’s affirmation of voting as a fundamental right, then ducked. “I have no view on that, and it wasn’t the subject of Kanter,” she said.

It’s possible to be too cynical about the political loyalties of conservative movement judges. The “originalist” philosophy of Barrett’s hero and mentor, Antonin Scalia, is not a wholly partisan idea — though as my colleague Cass Sunstein notes, it reliably produces decisions favorable to the Republican Party, even as the party has grown more extreme.

Yet Barrett’s coldness toward voting rights is a snug fit with a minority party determined to suppress voters to enable it to retain power. Shortly after Barrett’s discussion with Durbin, almost as an echo, the Supreme Court gave renewed life to President Donald Trump’s effort to sabotage the Census so that Republicans can skew congressional representation in their favor.

Senator Mike Lee, Republican of Utah, revealed last week where all this is going. “America is not a democracy,” he tweeted. “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are,” Lee continued. “We want the human condition to flourish. Rank democracy can thwart that.”

“Rank” democracy is what you get when people from cities and suburbs vote too much. The Republican remedy for that in 2020 is systematic vote suppression. To maintain its minority power in the future, even more aggressive efforts may be necessary.

In elevating gun rights over voting rights, Barrett is doing more than showing solidarity with the National Rifle Association, a key Republican constituency. She is wearing Republican fear of voters on the sleeve of her judicial robe. In Tuesday’s hearing, she did everything but quote Lee’s tweet. When Amy Klobuchar, the Minnesota Democrat, asked her if voter intimidation is illegal, Barrett declined to affirm it. When Cory Booker asked her about Trump’s refusal to commit to a peaceful transfer of power, Barrett again demurred, mumbling about not wanting to be drawn into a political fight before praising the peaceful transfers of the past.

An “originalist” justice will usually get GOP partisans the results they seek. For the ugly work ahead, however, a Republican judge may be required.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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