Judge Amy Coney Barrett attends a meeting on Capitol Hill in Washington. D.C. on Oct. 1, 2020.ERIN SCOTT/Reuters
Preston Lim is a J.D. candidate at Yale Law School. He previously represented Canada as a Schwarzman Scholar at Tsinghua University, where he received a Master’s in Global Affairs.
Last month, after the death of Supreme Court Justice Ruth Bader Ginsburg, President Donald Trump nominated Judge Amy Coney Barrett to replace her. Ever since that announcement, things have moved at a breakneck pace, despite COVID-19 diagnoses among top U.S. officials, including Mr. Trump. Still, with senators able to participate remotely in the hearings, and with the Republicans' Senate majority, the appointment of Ms. Barrett could be one of the fastest in modern U.S. history.
This is cause for celebration among Republicans, as the 48-year-old Ms. Barrett is poised to provide conservatives an enduring 6-3 majority in the highest court in the land. As a Judge on the U.S. Court of Appeals for the 7th Circuit, she penned a number of notable dissents, including backing the Trump administration’s immigration policies and arguing that under the Second Amendment, certain convicted felons have the right to possess firearms.
Unsurprisingly, commentators have largely focused on the domestic ramifications of the upcoming Supreme Court fight. But Americans should not ignore how Ms. Barrett’s confirmation will likely diminish the international stature of the U.S. and its courts.
For centuries, U.S. constitutional thought has served as a global gold standard. The Declaration of Independence and its defence of “life, liberty, and the pursuit of happiness” have inspired political movements around the world. Lajos Kossuth, the Hungarian political leader, called it “the noblest, happiest page in mankind’s history.” The U.S. Constitution, which provides for the separation of powers and articulates the enduring idea that the best way to protect civil liberties is to entrench them in law, has influenced countless constitutional documents around the world, including Canada’s Bill of Rights and our Charter of Rights and Freedoms. As recently as the fall of the Iron Curtain, newly democratized countries looked to the U.S. Constitution as a template for their nascent nations.
Throughout much of the 20th century, the U.S. Supreme Court was a leader of the global rights revolution. The Court struck down racial segregation in public schools in the landmark Brown v. Board of Education of Topeka, which remains one of the most widely celebrated cases in modern history. And Thurgood Marshall’s rise from dogged civil-rights lawyer to Supreme Court Justice captivated the imagination of rights activists around the world.
Yet in recent decades, the Supreme Court has resisted evolution, instead of meeting modern legal challenges head on. The Supreme Court has upheld the death penalty, and it took until 2005 to strike down the execution of juveniles as unconstitutional, even though most Western countries banned capital punishment altogether long ago. On gun rights, the Court has held that the Second Amendment enshrines an individual right to keep and bear arms, and it has studiously protected that right. The Court even held in United States v. Lopez that Congress did not have full authority to prohibit the possession of a gun near a school. Even in cases where the Court has adopted more modern sentiments – take Obergefell v. Hodges, which legalized gay marriage – the Court was late to the game when compared to its Western peers.
This is not to dismiss the U.S. Supreme Court’s recent jurisprudence. The Court remains a deeply respected institution, and in the decades to come, courts around the world will continue to look to U.S. precedent to guide and inform their discussions. Yet there is little doubt that as the U.S. Supreme Court eschews global norms (and will likely increasingly do so in the years to come), countries will look to other Western high courts for inspiration. The Supreme Court of Canada’s bold and progressive jurisprudence, for instance, has attracted admiration and discussion in a dizzying array of jurisdictions, from Israel to Hong Kong. Similarly, the European Court of Human Rights and the Supreme Court of South Africa arguably now carry more global weight than the U.S. Supreme Court.
Of course, U.S. conservatives may dismiss such globalist arguments. If America is the shining city upon a hill, then who cares what other apex courts think? But America’s constitutional influence enhances its global stature. Ms. Barrett’s appointment and the consequent rightward shift of the court threaten to imperil the objective rule of law and, as a result, America’s standing in the world.
Should Democratic presidential nominee Joe Biden win the election, he should immediately prioritize American constitutional reform. The current appointments system, which has allowed one President to nominate three Justices, is badly outdated. And the Court has become so politicized and fractured that it can scarcely be seen as an objective arbiter. Until recent decades, the United States was a constitutional beacon for the rest of the world. With a reform-minded President, it may soon regain its clout.
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