Wednesday, September 30, 2020

"Very soon Trump’s new pick for the US Supreme Court will be grilled by Democratic senators about her conservative views on abortion and the Affordable Care Act. They are rightly worried that her appointment will put in place a 6-3 majority of rightwing judges on the Court, especially in the wake of Trump’s explicit disappointment at the fact that even his picks have on a couple of occasions voted against positions he favoured. What assurance does he think he has that this pick will be more compliant, a ‘loyal’ ‘Trump judge’? 

It would be a great pity in the hearings if the senators did not ask what Justice Barrett said in her comment on John Finnis’s paper at this event in late February this year.

As I have shown in my article, ‘Lawyer for the Strongman’, Finnis argues for the equivalent of the ‘unitary executive’ in US jurisprudence, i.e. the Schmittian position that the executive may exercise its prerogatives unbound by law.  If Justice Barrett was not highly critical of Finnis, Democratic senators have even more to worry about than they know. The Senate will be confirming a jurist who believes that we need a strong executive to police the border between the ‘friends’ in a substantively homogenous community and the ‘enemy’ of the ‘others’, even if this means moving that border within the cities so that federal forces can ‘deal’ with those who might to take to the streets if Trump contests the election result, as they dealt with the ‘terrorists’ in the Black Lives Matter protests."

Read the full article at the Verfassungsblog on Matters Constitutional