OBJECTION!

Constitutional lawyer Rips lays out a legal case for not admitting Amy Coney Barrett to the Supreme Court.

The author, who served as a clerk for Supreme Court Justice William Brennan, advances a technical argument that he asserts disqualifies Barrett from being named an associate justice: Her nomination is a violation of the religious test clause of the Constitution, the only clause, he adds, that by design cannot be amended. The violation lies less in Barrett’s belonging to an “insular, predominantly Catholic covenant community”—the tenets of which include overturning Roe v. Wade and infringing on LGBTQ+ rights, including the right of marriage—than it does in Trump’s turning the selection and vetting of the nominee over to a group of evangelicals. He did so, Rips asserts, to cement their support in the presidential election, since he had been losing support among fundamentalists, a strong component of his base. The religious test clause, controversial when added at the insistence of the Federalists, is specific. “The violation comes from allowing a particular religious group a dominant influence in determining who takes public office—it is the poisoned process, not its result, which constitutes the constitutional violation,” writes the author. Naturally enough, he suggests, Barrett does not accept the clause as written, though she has claimed to be guided by it and other precedents—though not the “superprecedent” of Roe. Rips calls for a lawsuit to be filed to enjoin Barrett from taking the bench until the religious test issue is resolved, adding that if the Republicans railroad her to the position, then she can be removed. “In that filing,” he holds, “it needs to be made evident that the courts will be defending the religion clauses of the Constitution but ultimately this democracy, this nation, from the interventions of a minority sect.”

A narrowly focused but eminently timely reproach to yet another Trumpian threat to the republic.