Updated: Apr 10, 2021
In recent days, the eyes of the world are turned towards the US elections, which will have far-reaching effects across the globe. However, in my opinion, the event that will have most impact on human rights is not the election, but the appointment of Amy Coney Barrett to the US Supreme Court.
As a human rights advocate, over the years I have always stressed the importance of representation. To move forward in human rights representation is key, regardless of whether we are considering women’s rights, children’s rights, disability rights, refugee rights, the rights of ethnic or religious minorities, or emerging areas such as sexual rights, the rights of older people, intergenerational justice and environmental rights. In places where law is written, interpreted, and applied, where decisions are made that affect people’s lives, well-being, and dignity, those who are directly affected by the decisions must have real opportunities not only to make their voices heard but to make their perspectives, experiences and expertise count.
Nevertheless, representation alone is not sufficient to make a meaningful difference. In numerous contexts, representation and consultation is tokenistic. Including a single representative to speak for wide and diverse groups cannot adequately cover the complexities of human societies. In those cases where individuals find themselves in a position of having to speak on behalf of groups with broad, complex and conflicting interests, the character and integrity of those individuals becomes disproportionately significant. Any scandal or shortcoming connected to that individual will affect the opportunities of all who are supposed to be represented. If representatives belong to vulnerable and marginalised groups, they are also exposed to pressures from stronger interest groups to support decisions that do not protect human rights. In such cases, the vulnerable groups they represent are likely to have less access to information or resources that would allow these groups to protest against co-opting their voice.
Representatives of different groups, speaking for different human rights, can and have been manipulated to fight among themselves. rather than aligning on a common human rights agenda in the best interests of all. They may select particular rights issues, applicable to a restricted community, while ignoring other rights, or excluding other communities from those same rights.
A striking example of the limits to representation and the dangers of relying on the personal integrity of a small number of individuals is offered by the appointment to the US Supreme Court of Amy Coney Barrett, replacing the late Ruth Bader Ginsberg as one of three women in this body. Ruth Bader Ginsberg was a remarkably influential figure in US law, and an activist engaged in women’s rights and fighting discrimination. She co-founded the Women’s Rights Project in the American Civil Liberties Union in 1972. Both as an attorney and as a justice of the Supreme Court, Ruth Bader Ginsberg was involved in significant rulings fighting gender-based discrimination, whether against women or men. She also ruled that mental illness should be covered by the Americans with Disabilities Act, and that residents can make claims against industrial polluters.
Like Ruth Bader Ginsberg, Amy Coney Barrett is a woman, but she represents radically different interests. She belongs to a controversial fundamentalist Catholic group, the People of Praise, where members commit to obeying their husbands and the decisions of the community leader. She has been actively engaged in opposing reproductive and sexual rights. Her father worked for Shell, and although she recused from cases specifically involving Shell, she did not recuse from cases involving the lobby group American Petroleum Industry, in which her father was chairman. Amy Coney Barrett has refused to commit to recusing in future cases involving the fossil fuels industry or other conflicts of interest.
The US Supreme Court holds a special position, due to the particular structures of the US legal system and governing institutions. The legal system is precedent-based, so the interpretation and praxis defined by rulings have great weight beyond the circumstances of the individual cases. Supreme Court justices are appointed for life, which is supposed to help balance power and prevent pressures on the justices. But although justices are intended to stand above party politics, both appointments and rulings are highly political.
In other contexts, the appointment of justices (and representation more generally) naturally follows different dynamics, with other consequences. Nevertheless, some lessons can be learned from the appointment of Amy Coney Barrett. One is that questions of personal track-record and integrity are clearly more important than the simple question of “identity”. Ruth Bader Ginsberg was a woman and Jewish, and this led her to consistently fight discrimination in any form. Amy Coney Barrett is a woman and Catholic, and her professional track record shows her to be engaged in driving extreme agendas contrary to human rights.
The second lesson is the importance of human rights and human rights discussions as a space to reflect on and collectively develop a shared moral compass in rapidly changing times. This space is not limited to specific interest groups or individual agendas and cannot easily be co-opted. Crucially, human rights are not a code that is set in stone, but a body of principles that is continuously evolving. While there is an agreement that existing rights cannot be lost, there is also a determination to move forwards. Today, we are more than ever before witnessing the emergence of new technologies, shifting geopolitical landscapes, and urgent challenges such as mass extinctions and climate change. It is therefore absolutely vital that we join forces to invest in spaces for reflection and discussions on human rights, ethical implications and the fundamental principles that should govern our decisions. Representation is certainly important for human rights, but only insofar as it is matched by commitment to human rights and driven by a living debate.