Dyzenhaus, David

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What did Amy Coney Barrett say?David Dyzenhaus 2020-09-28T20:34:02Very soon Trump’s new pick for the US Supreme Court will be grilled by Democraticsenators 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 majorityof rightwing judges on the Court, especially in the wake of Trump’s explicitdisappointment at the fact that even his picks have on a couple of occasions votedagainst positions he favoured. What assurance does he think he has that this pickwill be more compliant, a ‘loyal’ ‘Trump judge’? It would be a great pity in the hearings if the senators did not ask what JusticeBarrett said in her comment on John Finnis’s paper at this event in late February thisyear.As I have shown in my article, ‘Lawyer for the Strongman’, Finnis argues for theequivalent of the ‘unitary executive’ in US jurisprudence, i.e. the Schmittian positionthat the executive may exercise its prerogatives unbound by law.  If Justice Barrettwas not highly critical of Finnis, Democratic senators have even more to worryabout than they know. The Senate will be confirming a jurist who believes that weneed a strong executive to police the border between the ‘friends’ in a substantivelyhomogenous community and the ‘enemy’ of the ‘others’, even if this means movingthat border within the cities so that federal forces can ‘deal’ with those who mightto take to the streets if Trump contests the election result, as they dealt with the‘terrorists’ in the Black Lives Matter protests.It is also worth remarking that at this same event papers were given by ProfessorsRichard Ekins and Guglielmo Verdirame. Under Finnis’s guidance, they are onthe Judicial Powers Project Website and elsewhere making the argument that itis consistent with the rule of law for the UK Parliament to break the rule of law, soleaving the executive free of the obligations the same government had negotiated inan international  treaty just months before.This ‘risible’ argument, as one eminent UK constitutional lawyer called it,  is allpremised on the view that international law is not really law, ‘defective’ as Finnis hasproclaimed.I am not sure that I agree, however, that the argument is laughable, except to makethe point that it is so bad that no jurist could take seriously the claim that becausegovernment ministers and Parliament can violate the rule of law, therefore theymay.  See here. The reason not to laugh is that Ekins and Verdirame as well asother lawyers on what Tom Poole of the LSE aptly dubbed the Executive PowerProject are directing the law ‘reforms’ of Johnson’s government. The path theUK is on leads to the destruction of the rule of law and democracy. We can notehere Ekins’s astonishing claim that the judges of the UK Supreme Court who usedreasoning long familiar to common lawyers to read a privative clause as not ousting- 1 -all judicial review should be removed from office, a step which he claimed would notcompromise judicial independence. In making this argument, he advocated the kindof tactic so successfully deployed in Orban’s Hungary and in Poland over the lastfew years of using mechanisms of judicial discipline to ensure a compliant judiciaryat the same time as maintaining a façade of the rule of law.It would be good to know Justice Barrett’s thoughts in this regard too.- 2 -

What did Amy Coney Barrett say?

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What did Amy Coney Barrett say?

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