Opinion | Will We Choose the Right Side of History?

Amy Coney Barrett has been following recent precedent in her confirmation hearing before the Senate, pretending that she has never had an interesting thought in her life.

Is it illegal to intimidate voters at the polls? She didn’t want to weigh in. A president postponing an election? Hmm. She’d have to think about that.

What about climate change? “I have read things about climate change,” she acknowledged, warily emphasizing that she is not a scientist. “I would not say I have firm views on it.”

If she had been asked about astronomy, she might have explained: “I have read things about the Earth being round. I would not say I have firm views on it.”

But for all the obfuscation, which nominees of Democratic presidents have engaged in as well, there is no hiding the essential truths that Barrett: A) is very bright; and B) would solidify a conservative Supreme Court majority whose judicial philosophy has been on the wrong side of many of the great issues of my lifetime.

We sometimes distinguish between “liberal judges” and “conservative judges.” Perhaps the divide instead is between forward-thinking judges and backward-thinking judges.

Partly because of paralysis by legislators, partly because of racist political systems, forward-thinking judges sometimes had to step up over the last 70 years to tug the United States ahead. Those judges chipped away at Jim Crow and overturned laws against interracial marriage, against contraception, against racial and sexual discrimination.

Just this week, Bernard Cohen, the lawyer who won the interracial marriage case in the Supreme Court in 1967, died — a reminder of how recent such progress is. In that case, Richard and Mildred Loving, a white man and Black woman who married in Washington, D.C., had moved to Virginia, where the police barged into their home at 2 a.m. and arrested them in bed for violating an anti-miscegenation law. Forward-thinking justices struck down such laws — and that wasn’t about “activist judges” but about decency, humanity and the 14th Amendment.

It was as recent as 2003 that enlightened Supreme Court judges struck down state sodomy laws that could be used to prosecute same-sex lovers. Three backward-thinking justices, including Antonin Scalia, Barrett’s mentor, would have allowed Taliban-style prosecutions of gay people for intimacy in the bedroom. (Barrett refused in the hearing Wednesday to say whether the case was rightly decided.)

It is true, as some conservatives argue, that this path toward social progress would ideally have been blazed by legislators, not judges. But it is difficult for people who are denied voting rights to protect their voting rights, and judicial passivism in these cases would have buttressed discrimination, racism, sexism and bigotry.

That brings us to another historical area where conservatives, Barrett included, have also been on the wrong side of history — access to health care.

Over the last hundred years, advanced countries have, one by one, adopted universal health care systems, with one notable exception: the United States. That’s one reason next month’s election is such a milestone, for one political party in America is trying to join the rest of the civilized world and provide universal health care, and the other is doing its best to take away what we have.

The G.O.P. is succeeding. Census data show that even before the Covid-19 pandemic the number of uninsured Americans had risen by 2.3 million under Trump — and another 2.9 million have lost insurance since the pandemic hit. Most troubling of all, about one million children have lost insurance under Trump over all, according to a new Georgetown study.

I’m not trying to scare readers about Barrett joining a conservative majority to overturn the Affordable Care Act. My take is that Democrats are exaggerating that risk; the Republican argument in the case, to be heard next month, is such a legal stretch that it’s unlikely to succeed fully, even if Barrett is on the court.

But it is possible, and that would be such a cataclysm — perhaps 20 million Americans losing insurance during a pandemic — that it’s worth a shudder. It should also remind us of the importance of renewing the imperfect, on-again-off-again march of civilization in America, away from bigotry and toward empowerment of all citizens.

Barrett is not a horrible person; on the contrary, she seems to be a smart lawyer with an admirable personal story. Yet she’s working with a gang of Republican senators to steal a seat on the Supreme Court. This grand larceny may well succeed. But for voters, this hearing should underscore the larger battle over the direction of the country.

Voters can’t weigh in on the Barrett nomination, but they can correct this country’s course.

Here’s the fundamental question: Will voters reward the party that is working to provide more health care, or the party that has painstakingly robbed one million children of insurance? Will voters help tug the United States forward, or will they support the backward thinkers who have been on the side of discrimination, racism, bigotry and voter suppression?

At the polls, which side of history will you stand on?

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