After Amy Coney Barrett takes a seat on the Supreme Court, where do you want to live?
That’s no idle question. Once Barrett cements a conservative majority on the court, it’s a question of life, liberty, and the pursuit of happiness. If Barrett does what President Trump and her conservative backers expect of her, the rights of individuals stand to be defined by the laws and culture of the state in which they live, with less chance of reprieve from the Supreme Court. Blue or red will describe not just the prevailing politics but also your individual prevailing freedoms.
Before Barrett, your where-to-live decision tree might look like this: Do I want to live in the state where I grew up? Do I have friends and family in the area? Do I want to live in a city or in a pastoral rural setting? Do I love the ocean? Do I loathe the snow? Also very important: What are my job prospects? Is there housing I can afford?
After Barrett, a more important question looms: “What state will I feel most free in?” said civil liberties lawyer Harvey Silverglate.
Freedom means different things to different people. To some, it can mean the right to openly carry a weapon, or not wear a mask to prevent the spread of COVID-19. But to others, it means voting rights and ballot access; the right to same-sex marriage; reproductive rights, including the right to the choice of abortion.
After Barrett takes her seat, it’s probable Americans will be less able to rely on the Supreme Court — as currently configured — to uphold such rights. If that’s the case, they will have to rely on “the statutes, constitution and court-of-last-resort opinions in the state where they live,” Silverglate said.
Consider the topics Barrett refused to address during her nomination hearings. As Senator Elizabeth Warren of Massachusetts reminded the country in remarks she gave in opposing Barrett’s nomination: “She refused to say whether the Supreme Court ruling upholding the right to contraception was correct. She refused to say whether the government can criminalize a same-sex relationship. She refused to say whether it’s wrong to separate children from their parents in order to deter immigration. She even refused to say whether climate change is happening and whether it poses a threat to human beings.”
Barrett also refused to say whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election. She would not say whether citizens have the right to health insurance. She would not speak up for workers’ rights or gun violence prevention rights.
Her silence does speak louder than words. As Warren said, “It shows that she believes these critical rights, protections, and values are debatable — up for grabs.”
After Barrett, the list of rights that are “up for grabs” is scary. Whether a state is friendly or hostile to them becomes very important, and could influence where a person wants to live.
When it comes to civil liberties, we are lucky in Massachusetts. As Silverglate points out, our state constitution is older than the US Constitution, with a Declaration of Rights that has been interpreted to assure more liberty than the Bill of Rights. The right to choose abortion is available in Massachusetts, and will be, no matter what happens to Roe v. Wade; even so, there’s a movement to strengthen state abortion law. Marriage equality started here, then went national when the US Supreme Court followed in the footsteps of the Supreme Judicial Court of Massachusetts. State lawmakers passed health care reform legislation and then-Republican Governor Mitt Romney signed it into law.
While such issues may be better decided by lawmakers, doing it requires lawmakers reflective of a liberal majority. Where that doesn’t exist, the Supreme Court is the ultimate arbiter of personal freedom. With Barrett on the court, freedom may look very different, depending on where you live in the divided states of America.