In 2020, Amy Coney Barrett went onto national stage unlike any other Supreme Court nominee. She arrived at the climax of a political drama that many critics described as outrageous and something akin to insanity. In the 46 days between the death of Justice Ruth Bader Ginsburg and Election Day, Republicans in the Senate seemed to race in the nomination of Barrett through the committee and the floor, a time that defied the traditions of an election-year nomination and was emblematic compared to the way Senate Republicans did the same in 2016 with Merrick Garland. The speed of the process has been described by law academics and commentators as a break of norms with long-term consequences of the perceived legitimacy of the Court.

Why did others refer to her appointment as being rushed and not appropriate? Start with the perspective. In 2016, the leadership of the Senate blocked the nomination of President Obama nominee Merrick Garland on grounds that it was a seat close to a presidential election and, therefore, should be selected by the next president; in 2020, the same leadership played the opposite game and nominated a lifetime justice a few weeks before the next president was elected. It was not a mere hypocrisy to break, a move that was a political calculation to break, and further bolster partisan suspicion of the Court. Legal critics argued that this ad hoc position exposed a bigger problem: when judicial confirmations become part of particular party politics of seeking to avoid judicial independence, then the institutionalized norms which serve to insulate the Court against normal politics will start to unravel.

The confirmation hearings did not feel like a serious discussion of constitutional philosophy so much as they did like a reality television show where Senators filmed viral videos. Questions on health care, abortion, and even Barrett’s family were delivered with theatrical finesse, while Barrett herself sat, mute as a blank notepad, in a display of superhuman recall. The act was nearly surreal: a nominee, hurled through the meat grinder of American politics, called upon to briefly expound her originalist philosophy with cameras trying desperately to get a single dramatic soundbite. Political scientists referred to the spectacle as a manifestation of the performative spiral of affirmation politics, in which the content of judicial review is replaced by spectacle, theatrics, and pure speed.

The scandals surrounding Barrett did not just revolve around senatorial antics. In 2006, she signed a newspaper advertisement that condemned Roe v. Wade as ‘barbaric,’ a choice critics saw not as mere academic disagreement but as evidence of active political campaigning. Her appointment to the Supreme Court turned the Court itself into a platform: one side hailed her as the intellectual heir to Justice Antonin Scalia, while the other warned that her confirmation started the countdown to Roe’s demise. Those warnings proved prescient within two years, the Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned nearly half a century of precedent. The threats came to fruition within two years in Dobbs v. Jackson, the case that reversed close to half a century of precedent was Jackson Women's Health Organization. What Barrett had once treated as an abstract question in her scholarship, the tension between originalism and stare decisis, was now unfolding as lived reality for millions of Americans.

To make the situation even more surreal, Barrett’s affiliation with People of Praise a conservative Christian group whose use of gendered titles and insular practices drew scrutiny, became a focus of intense media attention. Supporters within the group defended it as a benign religious community, while critics and some journalists raised allegations of abuse and patriarchal control, though many of these claims remained disputed or unproven. For Barrett’s allies, this line of criticism was caricature, an attempt to conflate her faith with her jurisprudence. For her detractors, however, the concern was exactly that: that her religious commitments and judicial authority could not easily be separated in the public’s perception.

A vacancy-to-confirmation period of 46 days is, itself, no sprint; it is lightning. By historical criteria it was a curiosity. The average confirmation process has taken two or three months of debate, hearings and investigations since the seventies. To Barrett, the deadline was half that, and the circumstances could not have been more charged: a presidential race underway, millions of mail-in ballots already cast, and the country in the throes of a pandemic. It was topped off with the image of senators, some of whom were infected with COVID-19, others wearing masks and clearly scared, flocking into hearing rooms. The Senate was seemingly ready to take a risk with viral transmission, institutional reputation, and political backlash merely in order to achieve one final victory before an electoral curtain was drawn.

It produced not only a justice on the Court but a break with the myth of judicial neutrality. After her confirmation, weeks later, polls indicated a precipitous decline in popular confidence in the Court. There was even talk of a legitimacy crisis, and it was feared that the moment the Court could be seen as an arm of partisan will, its decisions might begin to lose the halo of binding judgment. And still the machine turns round. In speeches since her confirmation, Barrett herself has declared that the Court is not an assembly of partisan hacks. It is, of course, ironic that the necessity to make such a statement emphasizes only the extent of the popular skepticism.

The appointment of Amy Coney Barrett was not exactly a jurisprudential breakthrough, but rather a fever dream of American politics: speed, ideology, faith, and power coming together to create the impression that the confirmation process has turned into performance art. It demonstrated the vulnerability of rules not explicitly stated, how easily political players can jettison precedent when expedience demands it, and how surreal it becomes when the judiciary itself is another casualty in the political agenda. 

Information retrieved from ResearchGate, DttP, Cardozo Law Review, NAACP Legal Defense Fund, Michigan Journal of Law Reform, America Magazine, The Guardian,  and The Washington Post