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Diana Bray: Will Amy Coney Barrett tip the scales of justice?

President Donald Trump announces Judge Amy Coney Barrett as his nominee for Associate Justice of the Supreme Court of the United States Saturday, Sept. 26, 2020, in the Rose Garden of the White House. (Official White House Photo by Andrea Hanks)

The violence and chaos at the U.S. Capitol, the COVID death toll that has surpassed 4,000 people a day nationwide, and the brazen treachery of the executive branch has me thinking about that other branch of government that has been largely silent and absent for weeks.

Just before their adjournment, the U.S. Supreme Court heard arguments related to the constitutionality of the Affordable Care Act and many other life-and-death matters. While attention to these topics have faded in light of the current crises, the judiciary’s decisions will impact Americans significantly, and arguments start up again Monday.

With the newly anointed Amy Coney Barrett on the bench, I am reminded of Edna, the heroine in the book “The Awakening,” written by Kate Chopin, in 1899. The book, at one time banned, was referenced as being a favorite of Barrett’s during her Senate Confirmation hearings, seemingly a lifetime ago, but actually less than three months ago.

Diana Bray

I don’t want to spoil the book for those who haven’t read it, but I’d like to point out that things don’t end particularly well for Edna. She is crushed by systemic double standards as she tries to escape the shackles of conformity in Louisiana. She is unsuccessful in her endeavor, as was the author in real life.

If indeed this book — and, by extension, the heroine  — is one of Barrett’s favorites, there is much we do not understand about how Justice Barrett’s rulings will tip the scales of justice.

What do we know?

We know that Barrett considers Brown v. Board of Education and Loving v. Virginia to be settled law but that, in her view, some other Supreme Court judgments are not.

We know that Barrett will defend all aspects of religious freedom, even if those protections harm others who are exposed to the religious institution’s activities.

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We know that Barrett is “pro-life,” selectively. She defends the death penalty, even for those who committed crimes as minors. There have been three federal executions on Barrett’s short watch, and more are scheduled in the weeks to come.

We know that Barrett has suggested that she will defend direct attacks based on race, but I wonder if she will be as eager to reject other policies that have an adverse effect on people of color.

We know that Barrett sees herself as an originalist, like the late Justice Anton Scalia, her mentor.

The job of the originalist justice is to interpret the exact meaning of words that were written 250 years ago. Understanding text, without reading between the lines,is the intention. This dynamic is the life-blood of originalist justices. Their intention works in the service of the superego, the part of the psyche that reflects the critical, moralistic psyche, and is interested in maintaining rigidity. And yes, dogma, too.

As David Meyers, a psychologist who has written extensively about social psychology and Christian faith, wrote, “The superego aims for perfection.” 

This part of our mental space lives amongst a person’s ideals, hopes, conscience and spiritual beliefs. The superego is punishing and exacting, rejects ambiguity, and wants everything in neat boxes. The last thing that originalists want, ironically, is to engage in original thinking, or thinking out of the box.

How does one reconcile a document that was written by people who owned other human beings, who committed savage crimes against humanity, and whose major tenets had slavery baked into it?

As happens only occasionally, some brave ones, generally not the originalists, have tried to unbake the injustice. For originalists, though, the American framers have been elevated to god-like proportions.

Scalia, Alito, Gorsuch, Barrett and other religious conservatives take the Constitution at its every word because they see the constitution as sacred.

It’s not a coincidence then, that originalists are all people of faith. Of course, not all people of faith are originalists.

Originalists reject subjectivity. Reaching the highest echelons of the law, they are people who like a sense of law. And order.

It seems that Amy Barrett has an overarching belief in God. But Barrett also comes across to me as simultaneously innocent, almost child-like, and ruthless. A confounding combination.

Perhaps that is why Barrett is nonchalant about the climate emergency. She is either feigning innocence as she says she hasn’t read much on it, or she thinks it is wholly out of our hands. 

Young children worldwide have a deeper comprehension on this subject than Barrett. She either lacks interest, or believes that our actions won’t make a difference because our fates are tied to something larger.

Coming back to Kate Chopin, and Barrett’s Louisiana heroine in “The Awakening,” it’s important to recognize that Edna experiences a longing for independence but is shattered by societal pressures. Edna’s recourse is to severely punish herself and others.

It will be interesting to see how Amy Coney Barrett rules on life-and-death matters, and how, like it or not, we will all have to live with the punishing decisions and laws that she, and the slaveholding framers who came before her, have made for the rest of us.


Diana Bray is a psychologist, mother of four, climate activist, beekeeper and former candidate for U.S. Senate in Colorado.


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