newyorker--2020-10-14--The Amy Coney Barrett Supreme Court Hearings Are an Enlightening Sham

Absent some sensational new revelation , such as the allegations of sexual assault that Christine Blasey Ford levelled at Brett Kavanaugh , in October , 2018 , nomination hearings these days tend to be bloodless affairs .
Citing the need to preserve their independence and maintain an open mind , the nominees point-blank refuse to say anything about the most consequential cases that they are likely to be called upon to decide , and the senators , robbed of any real judicial function , resort to giving political speeches .
Some of Tuesday ’ s hearing fell into this depressing @ @ @ @ @ @ @ the Senate Majority Leader , seemingly having the fifty-one votes needed for Barrett ’ s confirmation in his pocket , it was robbed of political tension .
Make no mistake , the rushing through of Barrett ’ s nomination four years after McConnell denied even a hearing to Barack Obama ’ s nominee Merrick Garland is an antidemocratic heist of historic dimensions—a point I emphasized when the news of her nomination broke .
But this is a crime that the cops—McConnell and his Republican colleagues—aren ’ t merely in on : they are @ @ @ @ @ @ @ virtually guaranteed .
This being so , the main point of interest on Tuesday was Barrett ’ s performance , and whether she would be able to maintain the convenient fiction that , if elevated to the Supreme Court , she will behave like a baseball umpire , calling balls and strikes without any regard to her personal feelings .
“ The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People .
The public should not expect courts to do so @ @ @ @ @ @ @ ” she said in her opening statement on Monday .
If the former Notre Dame law professor had donned a black polo shirt and M.L.B .
hat , the messaging couldn ’ t have been more plain .
She adopted the same stance on Tuesday morning .
“ Let me be clear , I have made no commitment to anyone—not in this Senate , not over at the White House—about how I would decide any case , ” she told Senator Patrick Leahy , the octogenarian Democratic warhorse of Vermont , who had @ @ @ @ @ @ @ would be counting on her vote to strike down the Affordable Care Act in a case that is scheduled to come before the Court a week after the election .
During a cordial back-and-forth , Senator John Cornyn , Republican of Texas , asked Barrett if she agreed with the late Antonin Scalia , whom she clerked for and has cited as her role model , that good judges , in their faithfulness to the letter of the law and its original intent , sometimes reach decisions that they don ’ t like @ @ @ @ @ @ @ , ” Barrett replied .
“ That has been my experience on the Seventh Circuit so far.
” Despite Barrett ’ s evasiveness , her Democratic interlocutors did highlight some of the prior associations and expressions of belief that she was so keen to downplay .
Leahy got her to acknowledge that , in 2006 , she signed a public letter from St. Joseph County Right to Life , an Indiana anti-abortion group , which , in some of its other literature , had taken the position that in-vitro fertilization is equivalent to @ @ @ @ @ @ @ the letter , which she had failed to disclose in the materials she sent to the committee , “ almost fifteen years ago quickly on my way out of church ” and hadn ’ t been aware of the group ’ s other materials , a point she repeated later in the hearing .
Leahy also quizzed Barrett about a lecture she gave to the Blackstone Legal Fellowship , a Christian program run by an ultraconservative organization called Alliance Defending Freedom .
“ Were you aware of the A.D.F.
’ s decades-long efforts @ @ @ @ @ @ @ .
Barrett replied , “ I am not aware of those efforts , no.
” These expressions of ignorance were jarringly at odds with the voluminous knowledge and instant recall she displayed in many of her other answers .
It was Senator Dick Durbin , the veteran Democrat of Illinois , who got to the crux of the matter , which is that Barrett ’ s legal opinions are much more closely tied to her conservative political beliefs than she lets on .
After grilling the judge about her attitude toward the A.C.A.
@ @ @ @ @ @ @ Durbin brought up the brutal police killing of George Floyd .
Initially , it seemed like he had made a political error .
Referring to the horrible video of a Minneapolis police officer kneeling on Floyd ’ s neck until he lost consciousness , Barrett , who has two adopted Black children , said , “ Senator , as you might imagine .
.
.
that was very , very personal for my family.
” She went on to say that “ racism persists in our country , ” before adding that how @ @ @ @ @ @ @ .
Durbin then changed tack , or so it seemed , and asked Barrett about a lengthy dissent she wrote in a 2019 case , Kanter v. Barr , in which she argued that the state of Wisconsin didn ’ t necessarily have the right to issue a law banning someone who has committed a nonviolent felony from buying firearms : it needed to show that such laws help keep the public safe , and that the individual concerned—in this case , Rickey Kanter , an entrepreneur who had been convicted of mail @ @ @ @ @ @ @ of dollars—had a proclivity for violence .
“ Absent evidence that he either belongs to a dangerous category or bears individual markers of risk , permanently disqualifying Kanter from possessing a gun violates the Second Amendment , ” Barrett wrote .
In bringing up this dissent , Durbin pointed out that even Scalia himself , in District of Columbia v. Heller , a landmark Supreme Court Case on gun rights from 2008 , had said the Second Amendment didn ’ t preclude the government from preventing felons and mental patients from purchasing firearms @ @ @ @ @ @ @ undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill , ” Scalia wrote , in the majority opinion . )
Addressing the empirical basis of Barrett ’ s dissent , Durbin also brought up a study which found that many nonviolent offenders are subsequently arrested for violent felonies .
“ The evidence is there , ” he said .
“ You ignored it.
@ @ @ @ @ @ @ a bit of her sangfroid , replied , “ Senator , I didn ’ t ignore it.
” Durbin then brought the conversation back to race .
In Barrett ’ s 2019 dissent , he pointed out , she had also drawn a distinction between the “ individual right ” to own a gun under the Second Amendment—a deeply dubious interpretation in itself—and the “ civic right ” to vote , which , toward the end of the Reconstruction era , and indeed up to this day , many southern states had systematically @ @ @ @ @ @ @ , among other things , banning felons from voting for their entire lives .
“ So you are saying that a felony should not disqualify Rickey from buying an AK-47 , but using a felony conviction from someone ’ s past to deny them the right to vote is all right ?
” Durbin asked Barrett .
Barrett repeatedly sought to parry Durbin ’ s thrusts .
The Constitution “ contemplates ” the option for states to ban felons from voting , she said .
“ But I expressed no view on whether @ @ @ @ @ @ @ states should do that.
” In noting a difference between individual rights under the Second Amendment and the civic right to vote , she was merely making a distinction that was consistent with the language used in earlier cases , including the Heller case , she insisted .
Durbin pressed her further , though .
He suggested that the very act of countenancing a distinction between the right to vote and the right to bear arms “ goes back to the original George Floyd question ” about systemic racism .
Barrett blinked and @ @ @ @ @ @ @ Court has repeatedly said that voting is a fundamental right , and I fear that you might be taking my statement in Kanter out of context.
” As the hearing proceeded , there were other interesting exchanges between Barrett and the Democratic senators , but the one with Durbin was the most telling of all .
Although the Illinois senator didn ’ t fully penetrate the judge ’ s armor , he did succeed in illuminating the deeply conservative legal philosophy that lies behind her aw-shucks demeanor .
In the Kanter v. Barr @ @ @ @ @ @ @ of the Constitution for a straightforward reliance on the need to keep guns out of the hands of criminals .
And instead of simply applying the Heller precedent law , like the good textualist she claims to be , she came up with a new distinction between felons and violent felons .
“ It ’ s saying , when we say felony , we just mean ‘ violent felony.
’ Well the word violent isn ’ t in there , but you found , or at least found reference to it , ” @ @ @ @ @ @ @ what activist judges do .
Given Barrett ’ s background , and her fealty to the legacy of Scalia— “ His philosophy is mine , too , ” she told Senator Mike Lee , Republican of Utah—there is every reason to believe that she will turn out to be a conservative activist on the Court .
Not that she will ever admit to this , of course .
Deciding cases is sometimes hard and complicated , she said toward the end of her questioning by Durbin .
“ But to the extent , @ @ @ @ @ @ @ suggesting I have some sort of agenda on felon voting rights , or guns , or campaign finance , or anything else , I can assure you , and the whole committee , that I do not .
”

If Supreme Court nomination hearings are thought of as quasi-judicial proceedings to determine whether someone deserves to spend decades on the nation’s highest legal bench, it was clear well before Tuesday morning, when Amy Coney Barrett started taking questions from the members of the Senate Judiciary Committee, that this hearing would be a “sham”—the term that Senator Amy Klobuchar, Democrat of Minnesota, used to describe it on Monday. In this era of permanent political warfare, loyalty to party and President long ago trumped the “advice and consent” clause in Article II of the Constitution, which granted the U.S. Senate the exclusive right to approve or reject treaties and judicial nominations.
Absent some sensational new revelation, such as the allegations of sexual assault that Christine Blasey Ford levelled at Brett Kavanaugh, in October, 2018, nomination hearings these days tend to be bloodless affairs. Citing the need to preserve their independence and maintain an open mind, the nominees point-blank refuse to say anything about the most consequential cases that they are likely to be called upon to decide, and the senators, robbed of any real judicial function, resort to giving political speeches. Some of Tuesday’s hearing fell into this depressing pattern. And with Mitch McConnell, the Senate Majority Leader, seemingly having the fifty-one votes needed for Barrett’s confirmation in his pocket, it was robbed of political tension. Make no mistake, the rushing through of Barrett’s nomination four years after McConnell denied even a hearing to Barack Obama’s nominee Merrick Garland is an antidemocratic heist of historic dimensions—a point I emphasized when the news of her nomination broke. But this is a crime that the cops—McConnell and his Republican colleagues—aren’t merely in on: they are planning and executing it. Success is virtually guaranteed.
This being so, the main point of interest on Tuesday was Barrett’s performance, and whether she would be able to maintain the convenient fiction that, if elevated to the Supreme Court, she will behave like a baseball umpire, calling balls and strikes without any regard to her personal feelings. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try,” she said in her opening statement on Monday. If the former Notre Dame law professor had donned a black polo shirt and M.L.B. hat, the messaging couldn’t have been more plain.
She adopted the same stance on Tuesday morning. “Let me be clear, I have made no commitment to anyone—not in this Senate, not over at the White House—about how I would decide any case,” she told Senator Patrick Leahy, the octogenarian Democratic warhorse of Vermont, who had the temerity to suggest that Donald Trump would be counting on her vote to strike down the Affordable Care Act in a case that is scheduled to come before the Court a week after the election. During a cordial back-and-forth, Senator John Cornyn, Republican of Texas, asked Barrett if she agreed with the late Antonin Scalia, whom she clerked for and has cited as her role model, that good judges, in their faithfulness to the letter of the law and its original intent, sometimes reach decisions that they don’t like. “I do agree with that,” Barrett replied. “That has been my experience on the Seventh Circuit so far.”
Despite Barrett’s evasiveness, her Democratic interlocutors did highlight some of the prior associations and expressions of belief that she was so keen to downplay. Leahy got her to acknowledge that, in 2006, she signed a public letter from St. Joseph County Right to Life, an Indiana anti-abortion group, which, in some of its other literature, had taken the position that in-vitro fertilization is equivalent to manslaughter. Barrett said that she signed the letter, which she had failed to disclose in the materials she sent to the committee, “almost fifteen years ago quickly on my way out of church” and hadn’t been aware of the group’s other materials, a point she repeated later in the hearing. Leahy also quizzed Barrett about a lecture she gave to the Blackstone Legal Fellowship, a Christian program run by an ultraconservative organization called Alliance Defending Freedom. “Were you aware of the A.D.F.’s decades-long efforts to recriminalize homosexuality?” Leahy asked. Barrett replied, “I am not aware of those efforts, no.” These expressions of ignorance were jarringly at odds with the voluminous knowledge and instant recall she displayed in many of her other answers.
It was Senator Dick Durbin, the veteran Democrat of Illinois, who got to the crux of the matter, which is that Barrett’s legal opinions are much more closely tied to her conservative political beliefs than she lets on. After grilling the judge about her attitude toward the A.C.A., and not getting very far, Durbin brought up the brutal police killing of George Floyd. Initially, it seemed like he had made a political error. Referring to the horrible video of a Minneapolis police officer kneeling on Floyd’s neck until he lost consciousness, Barrett, who has two adopted Black children, said, “Senator, as you might imagine . . . that was very, very personal for my family.” She went on to say that “racism persists in our country,” before adding that how to remedy it was a policy matter.
Durbin then changed tack, or so it seemed, and asked Barrett about a lengthy dissent she wrote in a 2019 case, Kanter v. Barr, in which she argued that the state of Wisconsin didn’t necessarily have the right to issue a law banning someone who has committed a nonviolent felony from buying firearms: it needed to show that such laws help keep the public safe, and that the individual concerned—in this case, Rickey Kanter, an entrepreneur who had been convicted of mail fraud for bilking Medicare out of millions of dollars—had a proclivity for violence. “Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment,” Barrett wrote.
In bringing up this dissent, Durbin pointed out that even Scalia himself, in District of Columbia v. Heller, a landmark Supreme Court Case on gun rights from 2008, had said the Second Amendment didn’t preclude the government from preventing felons and mental patients from purchasing firearms. (“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Scalia wrote, in the majority opinion.) Addressing the empirical basis of Barrett’s dissent, Durbin also brought up a study which found that many nonviolent offenders are subsequently arrested for violent felonies. “The evidence is there,” he said. “You ignored it.” Barrett, momentarily appearing to lose a bit of her sangfroid, replied, “Senator, I didn’t ignore it.”
Durbin then brought the conversation back to race. In Barrett’s 2019 dissent, he pointed out, she had also drawn a distinction between the “individual right” to own a gun under the Second Amendment—a deeply dubious interpretation in itself—and the “civic right” to vote, which, toward the end of the Reconstruction era, and indeed up to this day, many Southern states had systematically undermined as it applied to African-Americans by, among other things, banning felons from voting for their entire lives. “So you are saying that a felony should not disqualify Rickey from buying an AK-47, but using a felony conviction from someone’s past to deny them the right to vote is all right?” Durbin asked Barrett.


newyorker--2020-10-14--How Amy Coney Barrett Could Affect the Future of the Affordable Care Act

In Monday ’ s hearing , Democrats expressed concerns about how Barrett would rule on the case , known as California v. Texas , which challenges the law ’ s mandate that individuals “ shall ” buy insurance .
In 2012 , Chief Justice John Roberts joined the Court ’ s four liberals in a decision that preserved the A.C.A .
; the majority ’ s rationale was that a penalty for not buying insurance was a tax rather than an unconstitutional act of coercion .
In a law article from 2017 , Barrett wrote that “ Chief Justice Roberts @ @ @ @ @ @ @ plausible meaning to save the statute , ” an argument Democrats have pointed to during Barrett ’ s confirmation hearings as proof that she is all but certain to come down against it .
At the hearings , Barrett has said that she did not believe that the Court was bound by precedent in considering California v. Texas , but added , “ I assure you I am not hostile to the A.C.A.
” To talk about the case and the future of the Court , I spoke by phone , on Monday @ @ @ @ @ @ @ professor at the University of Michigan and an expert on health law and the A.C.A .
During our conversation , which has been edited for length and clarity , we discussed why even conservative legal experts find this challenge to the A.C.A .
so flimsy , other potential threats to the law , and what Barrett ’ s and Justice Brett Kavanaugh ’ s records suggest about future rulings .
How would you describe the Obamacare case that has made its way to the Court ?
The case rises out of the Republicans @ @ @ @ @ @ @ Act in 2017 .
They failed in that effort , and it doesn ’ t take a historian to reconstruct what happened , because we were all there .
Right .
And so at the end of 2017 , as a consolation prize , Republicans voted to eliminate the penalty for going without insurance , and every one of the Republican senators that spoke about it talked about the repeal of the individual mandate .
The President has talked about the repeal of the individual mandate .
Of course , that ’ s @ @ @ @ @ @ @ .
It scotched the only mechanisms for enforcing the A.C.A.
’ s command to buy insurance .
The lawsuit arose when some clever Republican attorneys general saw an opportunity .
And I have to say , right out of the gate , just describing the argument gives it more force and solidity than I think it actually has .
It ’ s a difficult claim to even describe .
I ’ m going to do my very best , but keep in mind that I view this as basically a ridiculous endeavor all @ @ @ @ @ @ @ understand the argument is to keep completely distinct in your mind the individual mandate , which is to say , the instruction in the Affordable Care Act that you shall buy insurance , and the penalty for going without insurance .
Now , nobody actually thinks they ’ re separate .
They ’ re one and the same thing .
They ’ re obviously connected .
But , if you keep those two things conceptually completely distinct , then you start to understand the argument , because when Congress eliminated the tax penalty @ @ @ @ @ @ @ in the A.C.A .
saying that you shall buy insurance .
Now the language didn ’ t have any force and effect after the penalty was eliminated , and the Supreme Court in 2012 had already interpreted that language as giving people a choice between buying insurance and going without it .
And , because it was a choice , it ’ s not a coercive command .
The Republican attorneys general said , no , what you need to understand is that “ shall ” language is best understood as a coercive @ @ @ @ @ @ @ insurance.
” We know from the 2012 decision that a coercive command is unconstitutional .
And we know that the A.C.A .
was only saved because it could be understood as imposing a tax , giving people a choice between buying insurance and paying the tax .
This was what John Roberts , voting with the four liberal Justices , ruled , correct ?
Exactly .
He also said , joining with the conservatives , that , if this were a statute that commanded people to buy insurance , that would be beyond @ @ @ @ @ @ @ ’ s a different way of reading the statute and giving people a choice , and that ’ s how I ’ m going to save the statute , he said .
These Republican attorneys general say that , once the tax penalty has been taken away , there is no longer any choice in the matter , and thus no way to construe the Affordable Care Act to give people that choice .
And , therefore , the only way to make sense of that word “ shall ” is as a @ @ @ @ @ @ @ argument .
I ’ m not mocking it .
They say that Congress made the Affordable Care Act more coercive when it eliminated the mandate penalty than when it was still in the law .
With the tax penalty , you could construe the law as giving people a choice .
Without the tax penalty , you can no longer construe the law as giving people a choice , in order to save its constitutionality .
So you just have to give it its fairest reading , which on their view is imposing @ @ @ @ @ @ @ ’ s a command that ’ s backed up by nothing .
There ’ s also the issue of whether they have standing , correct ?
There are three big issues in the case , and the plaintiff has to run the table on all three of them .
There ’ s a really big standing problem .
There ’ s the merits issue that we were just discussing , and then there ’ s a severability question .
On standing , the plaintiffs have a very weak argument .
When the red-state @ @ @ @ @ @ @ they immediately realized they had a big issue on their hands , because the individual mandate doesn ’ t apply to them—it applies to individuals .
And so they scrambled , and they found two Texas consultants .
They submitted this affidavit saying that they believed that they read the law to require them to buy insurance and that they felt compelled to comply with the letter of the law , even if it was unenforceable .
They ’ re not credible affidavits , to be totally candid .
But that ’ s @ @ @ @ @ @ @ states have standing .
Severability is the most audacious of the arguments , which is to say , if you believe that the individual mandate is unconstitutional in its current form , the proper remedy here is just to strike it down .
Congress didn ’ t think it was necessary to the proper functioning of the act , and we know that because Congress eliminated the enforceable penalty at the same time that it maintained the rest of the law .
But the challengers say , no , no , no—if you @ @ @ @ @ @ @ it left intact findings that Congress made in 2010 , when it first adopted the Affordable Care Act .
Those findings include statements that the individual mandate is essential to the operation of the law as a whole .
And the rationale for that , of course , is that the individual mandate , when it had a penalty attached to it , was thought to be necessary to bring people who are relatively healthy into the insurance market .
Those findings don ’ t have any bearing on a mandate that is @ @ @ @ @ @ @ that if Congress had meant to get rid of those findings it could have done so .
It chose not to .
Therefore , you ’ re stuck with the findings .
Therefore , the individual mandate must be essential to the law as a whole .
It basically serves as an instruction from Congress not to sever it from the rest of the law and , therefore , the entire law has to fall .
Some conservative intellectuals I ’ ve read have basically said this lawsuit is ridiculous , and that @ @ @ @ @ @ @ to the overturning of the A.C.A .
And that this case could be decided 7–2 , or 8–1 , with people like Samuel Alito and Clarence Thomas , perhaps , being in the minority .
Is that also your sense ?
I think that the gamble here was always to push the case , in the hopes that Justice Ginsburg would die and be replaced by a hard-line conservative , or that Trump would be reëlected by the time the case was heard .
That ’ s always been the play .
Chief @ @ @ @ @ @ @ stronger challenges to the law , so it ’ s very hard to see how he ’ s going to vote to overturn the law .
That said , the center vote in a case like this is likely to be Justice Brett Kavanaugh , but he ’ s shown himself to be more temperamentally aligned with Chief Justice Roberts in prior cases , and has given some indication that he might be skeptical of this case .

On Monday, the Senate Judiciary Committee began its confirmation hearings for Amy Coney Barrett, President Donald Trump’s nominee to fill Ruth Bader Ginsburg’s Supreme Court seat. Barrett is expected to be confirmed and join the Court this year, possibly before Election Day. This means that she could potentially rule on any election disputes, and it almost certainly means that she could rule on an upcoming case that may decide the future of the Affordable Care Act.
In Monday’s hearing, Democrats expressed concerns about how Barrett would rule on the case, known as California v. Texas, which challenges the law’s mandate that individuals “shall” buy insurance. In 2012, Chief Justice John Roberts joined the Court’s four liberals in a decision that preserved the A.C.A.; the majority’s rationale was that a penalty for not buying insurance was a tax rather than an unconstitutional act of coercion. In a law article from 2017, Barrett wrote that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” an argument Democrats have pointed to during Barrett’s confirmation hearings as proof that she is all but certain to come down against it. At the hearings, Barrett has said that she did not believe that the Court was bound by precedent in considering California v. Texas, but added, “I assure you I am not hostile to the A.C.A.”
To talk about the case and the future of the Court, I spoke by phone, on Monday, with Nicholas Bagley, a law professor at the University of Michigan and an expert on health law and the A.C.A. During our conversation, which has been edited for length and clarity, we discussed why even conservative legal experts find this challenge to the A.C.A. so flimsy, other potential threats to the law, and what Barrett’s and Justice Brett Kavanaugh’s records suggest about future rulings.
How would you describe the Obamacare case that has made its way to the Court?
The case rises out of the Republicans’ efforts to dismantle the Affordable Care Act in 2017. They failed in that effort, and it doesn’t take a historian to reconstruct what happened, because we were all there.
This is John McCain’s famous thumbs-down.
Right. And so at the end of 2017, as a consolation prize, Republicans voted to eliminate the penalty for going without insurance, and every one of the Republican senators that spoke about it talked about the repeal of the individual mandate. The President has talked about the repeal of the individual mandate. Of course, that’s the functional result of what Congress did. It scotched the only mechanisms for enforcing the A.C.A.’s command to buy insurance.
The lawsuit arose when some clever Republican attorneys general saw an opportunity. And I have to say, right out of the gate, just describing the argument gives it more force and solidity than I think it actually has. It’s a difficult claim to even describe. I’m going to do my very best, but keep in mind that I view this as basically a ridiculous endeavor all the way through.
The way to understand the argument is to keep completely distinct in your mind the individual mandate, which is to say, the instruction in the Affordable Care Act that you shall buy insurance, and the penalty for going without insurance. Now, nobody actually thinks they’re separate. They’re one and the same thing. They’re obviously connected. But, if you keep those two things conceptually completely distinct, then you start to understand the argument, because when Congress eliminated the tax penalty for going without insurance it left language in the A.C.A. saying that you shall buy insurance.
Now the language didn’t have any force and effect after the penalty was eliminated, and the Supreme Court in 2012 had already interpreted that language as giving people a choice between buying insurance and going without it. And, because it was a choice, it’s not a coercive command. The Republican attorneys general said, no, what you need to understand is that “shall” language is best understood as a coercive command, as “You shall buy insurance.” We know from the 2012 decision that a coercive command is unconstitutional. And we know that the A.C.A. was only saved because it could be understood as imposing a tax, giving people a choice between buying insurance and paying the tax.
This was what John Roberts, voting with the four liberal Justices, ruled, correct?
Exactly. He also said, joining with the conservatives, that, if this were a statute that commanded people to buy insurance, that would be beyond Congress’s powers. But there’s a different way of reading the statute and giving people a choice, and that’s how I’m going to save the statute, he said. These Republican attorneys general say that, once the tax penalty has been taken away, there is no longer any choice in the matter, and thus no way to construe the Affordable Care Act to give people that choice. And, therefore, the only way to make sense of that word “shall” is as a coercive command. This is literally their argument. I’m not mocking it. They say that Congress made the Affordable Care Act more coercive when it eliminated the mandate penalty than when it was still in the law.
How?
With the tax penalty, you could construe the law as giving people a choice. Without the tax penalty, you can no longer construe the law as giving people a choice, in order to save its constitutionality. So you just have to give it its fairest reading, which on their view is imposing a coercive command, even though it’s a command that’s backed up by nothing.
There’s also the issue of whether they have standing, correct?
There are three big issues in the case, and the plaintiff has to run the table on all three of them. There’s a really big standing problem. There’s the merits issue that we were just discussing, and then there’s a severability question. On standing, the plaintiffs have a very weak argument. When the red-state attorneys general first filed this lawsuit, they immediately realized they had a big issue on their hands, because the individual mandate doesn’t apply to them—it applies to individuals. And so they scrambled, and they found two Texas consultants. They submitted this affidavit saying that they believed that they read the law to require them to buy insurance and that they felt compelled to comply with the letter of the law, even if it was unenforceable.
They’re not credible affidavits, to be totally candid. But that’s the basis for the argument that the states have standing.
And the severability?
Severability is the most audacious of the arguments, which is to say, if you believe that the individual mandate is unconstitutional in its current form, the proper remedy here is just to strike it down. Congress didn’t think it was necessary to the proper functioning of the act, and we know that because Congress eliminated the enforceable penalty at the same time that it maintained the rest of the law. But the challengers say, no, no, no—if you actually look at what Congress did, it left intact findings that Congress made in 2010, when it first adopted the Affordable Care Act. Those findings include statements that the individual mandate is essential to the operation of the law as a whole.


newyorker--2020-10-14--How Would Amy Coney Barrett Rule as a Supreme Court Justice?

My one real conversation with Justice Ruth Bader Ginsburg took place in 2004 , when I was a law clerk for Justice David Souter .
Ginsburg invited my colleagues and me for tea in her chambers , where she served pastries baked by her husband .
Ginsburg recalled the initial revelation of the term “ sexual harassment , ” which put a name to a phenomenon that , she said , “ every woman ” understood .
Among her stories was one that is widely known today , about the sexism of the nineteen-fifties .
When Ginsburg was a student @ @ @ @ @ @ @ of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man .
Four decades later , when Justice Byron White , who had dissented in Roe v. Wade , retired from the Supreme Court , the spot that opened up did not go to a man but to Ginsburg , who by then was a judge on the D.C .
Circuit and a longtime heroine of the women ’ s movement .
And , @ @ @ @ @ @ @ seat will likely be occupied by another woman , the Court ’ s fifth ever : Amy Coney Barrett , another circuit-court judge and a former professor at Notre Dame Law School , whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg ’ s legacy .
When President Trump announced Barrett ’ s nomination , on September 26th , she paid homage to Ginsburg , who “ began her career at a time when women were not welcome in the legal profession , ” @ @ @ @ @ @ @ she will “ be mindful of who came before me.
” But Barrett , who clerked for Justice Antonin Scalia , is a conservative ; she said that Scalia ’ s “ judicial philosophy is mine , too.
” During her confirmation hearings , she has been asked to justify replacing a great liberal feminist Justice , taking a spot that , after the election , could perhaps have gone to a Democrat .
In February of 2016 , Barrett , then at Notre Dame , gave her opinion on making Supreme Court @ @ @ @ @ @ @ days after Scalia died , and a month before President Obama nominated Merrick Garland to take his seat , Barrett was interviewed on CBS News about Senate Republicans ’ nascent claim that , in Senator Marco Rubio ’ s words , “ Presidents don ’ t nominate Supreme Court Justices during election years.
” Barrett rejected that assertion , given that there had been six such confirmations in the twentieth century , saying , instead , that “ the Senate is willing to push a President ’ s nominees through in an election @ @ @ @ @ @ @ affiliation.
” In the past century , she recounted , the only Supreme Court confirmation during an election year when the Presidency and the Senate were controlled by different parties was that of Justice Anthony Kennedy , a moderate Republican who replaced a moderate Republican , in 1988 .
Practically , she concluded , “ the President has the power to nominate and the Senate has the power to act or not , and I don ’ t think either one of them can claim there is a rule governing one way or @ @ @ @ @ @ @ a subtler elaboration on Senate Majority Leader Mitch McConnell ’ s eventual position : that confirming a Republican nominee on the eve of the 2020 election could be squared with refusing to act on a Democratic nominee in 2016 .
Several Democratic Senators refused to meet with Barrett during such an “ illegitimate sham process , ” as Senator Richard Blumenthal put it—but this tragedy for liberals and windfall for conservatives , stemming from Ginsburg ’ s decision not to retire , as an octogenarian , during the Obama Administration , was easily @ @ @ @ @ @ @ whom Ginsburg served , Souter and John Paul Stevens , both of whom were appointed by Republican Presidents , retired during Obama ’ s Presidency .
Two years before Ginsburg joined the Court , the great liberal Justice Thurgood Marshall retired , and President George H. W. Bush nominated Clarence Thomas to replace him .
A majority of Americans now say that the next President should appoint Ginsburg ’ s replacement .
But President Trump and the Republican Senate have the ability to make the appointment , and few believe that Democrats would @ @ @ @ @ @ @ .
Barrett—who , if confirmed , will raise the number of Catholics currently on the Court to a whopping six—has made Catholicism central to her intellectual identity , speaking and writing about her faith .
As a young lawyer , she tackled the question of Catholic judges ’ religious consciences head on .
In a law-review article , published in 1998 , Barrett and her co-author , John H. Garvey , wrote that a Catholic trial judge who believes that the death penalty is immoral should recuse herself from any cases that could @ @ @ @ @ @ @ “ setting the wheels of injustice in motion ” is morally wrong and violates conscience .
Barrett and Garvey suggested that an appellate judge is differently situated , because she is not usually imposing a sentence but rather affirming or reversing one after hearing procedural or other legal challenges .
The two co-authors concluded that a Catholic appellate judge “ should enforce the law in easy cases , even if he could save a life by cheating.
” The article didn ’ t directly address the judging of abortion cases , but it @ @ @ @ @ @ @ position that abortion is “ always immoral ” and that the prohibition against it is “ absolute.
” Barrett herself stated , in 2013 , that she believes life begins at conception ; in 2006 , she signed a statement , published as a newspaper ad , that declared , “ It ’ s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.
” That said , Barrett ’ s stated views don ’ t appear to indicate that @ @ @ @ @ @ @ and above legal obligations ; if they were ever to come into direct conflict , her proposed solution is recusal .
During Barrett ’ s confirmation process in 2017 , she told the Senate that her belief in the immorality of abortion “ will have no bearing on the discharge of my duties as a judge.
” And , on Tuesday , she stated that she has “ no agenda to try and overrule ” Planned Parenthood v. Casey , the Court ’ s abortion-rights precedent , adding , “ I have an @ @ @ @ @ @ @ law and decide cases as they come.
” Democrats appear to have learned from Feinstein ’ s example to avoid questions about whether Barrett is dogmatically or obscurely devoted to a higher fealty , in favor of actually engaging her conservative jurisprudence disfavoring abortion rights , and without stoking fear of her religion .
During her three years on the Seventh Circuit , Barrett has twice dissented from the court ’ s refusal to rehear cases that struck down several of Indiana ’ s restrictions on abortion .
In one case , the @ @ @ @ @ @ @ when minors seek abortions , their parents or guardians must be notified , even if a judge has concluded that the minor is mature enough to make her own decision .
Barrett joined a dissent objecting to her colleagues ’ ruling that the law could not take effect while the state went to the Supreme Court .
The other case challenged a state law that prohibited abortion sought solely because of the fetus ’ s race , sex , or disability , and another that disallowed disposal of fetal remains as surgical waste @ @ @ @ @ @ @ colleagues struck down both restrictions ; the state then asked the full court for rehearing only on the issue of fetal remains .
When the court refused , she joined a dissent that argued that restricting methods of remains disposal is not an “ undue burden ” on the abortion right under Supreme Court precedents , and called the selective-abortion legislation an “ anti-eugenics law.
” Her dissent was vindicated last year by seven Supreme Court Justices , who reversed the Seventh Circuit panel on the issue of fetal remains , and by @ @ @ @ @ @ @ which claimed a connection between contemporary abortion rights and the early-twentieth-century eugenics movement .
Days before the November , 2016 , election , Barrett , then a law professor at Notre Dame and a promising conservative judicial prospect , commented on how a future Supreme Court might change abortion rights : “ Roe ’ s core holding that , you know , women have a right to an abortion—I don ’ t think that would change , ” Barrett said .
“ But I think the question of whether people can get very @ @ @ @ @ @ @ be put on clinics—I think that would change.
” Such remarks , combined with Barrett ’ s judicial record , allow for a confident prediction that , as a Justice , she would vote to narrow the abortion right .
The process will be more complicated than Trump suggested in his grandiose campaign promise that , because of his Supreme Court appointments , overturning Roe “ will happen , automatically.
” With a majority of the country in support of both keeping Roe and placing some restrictions on the abortion right , the @ @ @ @ @ @ @ the addition of Barrett , we ’ ll see Roe meaningfully curtailed but not eliminated , particularly at a time when the Justices must be very concerned about the Court ’ s fragile legitimacy , particularly given the heat of proposals for Congress to add more Justices or to impose term limits on them .
Some conservatives have in recent years advanced an outré argument that fetuses might have personhood-based rights , which might make abortion bans not just permissible but constitutionally required .
It seems improbable that Barrett would interpret the due-process @ @ @ @ @ @ @ would be five votes for that .
The modern judicial-conservative program has been to constrict rather than to expand the clause ’ s substantive reach , and to leave fundamental moral questions to the states .
That approach has led Barrett to voice support for the reasoning of the dissenters in Obergefell v. Hodges , which , in 2015 , declared a constitutional right to same-sex marriage .
She has said that the issue in the case was not whether the Court was “ for or against same-sex marriage ” but rather “ @ @ @ @ @ @ @ same-sex marriage or not.
” Barrett clearly would have been in the dissent in Obergefell , but , as with Roe , it ’ s not clear that she would simply vote to overturn it , any more than Chief Justice John Roberts would relish the Court ’ s crudely effecting a direct reversal of a recent decision or important landmark .
Justice Ginsburg did not have a chance to decide a Title IX case about college sexual-misconduct procedures .
But , in an interview about the # MeToo movement in The Atlantic @ @ @ @ @ @ @ Rosen that she believed some college sexual-misconduct procedures were unfair .
“ The person who is accused has a right to defend herself or himself , ” she said .
“ There ’ s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard , and that ’ s one of the basic tenets of our system , as you know , everyone deserves a fair hearing.
” Asked about how to “ balance the values of due process against the need for @ @ @ @ @ @ @ , “ It ’ s not one or the other .
It ’ s both.
” Ginsburg ’ s comments sit well with her groundbreaking gender-equality theories from the seventies , when she won cases challenging benefits that were given to women and denied to men on the basis of underlying gender stereotypes : a housing allowance for service members ’ wives but not husbands ; survivor benefits for widows but not widowers ; a lower drinking age for women than men ; and an option for women but not men to skip @ @ @ @ @ @ @ Ginsburg would take a similar approach to sexual-misconduct cases , in which the accused are predominantly men , believing that not allowing them fair process would undermine rather than promote gender equality .
To the extent that Barrett ’ s Title IX and due-process decision reflects her views on gender equality , they would be hard to distinguish from Ginsburg ’ s and many liberals ’ ( not to mention my own ) .
Abortion aside , I ’ ve seen little indication that Barrett would be inclined to undo the gender-equality concept @ @ @ @ @ @ @ .
In 2018 , Barrett affirmed a Title VII decision in favor of a Black male butcher who was sexually and racially harassed by his male co-workers , writing that a reasonable jury could conclude that he was tormented “ because of his sex.
” On the contested issue of transgender bathroom access , Barrett said , in 2016 , “ When Title IX was enacted , it ’ s pretty clear that no one , including the Congress that enacted that statute , would have dreamed of that result at that time @ @ @ @ @ @ @ we should change Title IX.
” Barrett was suggesting that Congress , rather than the courts , was responsible for updating Title IX protections .
But after the Court ’ s decision this past summer in Bostock v. Clayton County , in which Justice Neil Gorsuch and Chief Justice Roberts joined with four liberals to determine that Title VII ’ s prohibition of workplace discrimination “ because of sex ” protects gay and transgender people , the Court ’ s majority , which may well include Barrett , will likely interpret Title IX @ @ @ @ @ @ @ the basis of sex ” as protecting transgender students .
One question that has become a focus of the confirmation fight is whether Barrett might help Trump undo the most significant aspect of President Obama ’ s legacy , the Affordable Care Act .
The week after the election , the Supreme Court will hear arguments in a case challenging the law , and if the confirmation goes according to the Republicans ’ plan , the case will be among the first on which Barrett will sit .
In 2012 , Chief Justice @ @ @ @ @ @ @ unconstitutional , by interpreting the penalty for individuals who do not purchase health insurance as a “ tax ” rather than as a command to purchase insurance .
But in 2017 , Republicans eliminated that tax , which now raises the question whether the provision is still a constitutional exercise of Congress ’ s power , and , if not , whether the entire law now must fall .
As a law professor , Barrett wrote that the Chief Justice ’ s interpretation “ pushed the Affordable Care Act beyond its plausible meaning @ @ @ @ @ @ @ view shared by many conservatives , but hardly limited to them .
This comment has led Democrats to extrapolate that she would now vote to invalidate the entire health-care law , though there is little evidence on how she would actually decide and not all legal conservatives seem convinced of the arguments for striking it down .
The Democrats have heavily emphasized the A.C.A .
in Barrett ’ s confirmation hearings as a political strategy , less than three weeks before the election in which they hope to take the Presidency and flip @ @ @ @ @ @ @ s position , however , the broad popularity of the A.C.A.
, particularly during the pandemic , makes it likely that five Justices will find a way to preserve the protections of the health-care law—and , more important , that Congress would act if they do not .
For what must have been a demoralizing half century , conservatives pined for a Supreme Court that would finally give them satisfying victories on abortion and other hot-button social issues , including affirmative action and immigration .
Each time conservatives believed that they were on @ @ @ @ @ @ @ were frustrated by Republican-appointed Justices—Sandra Day O ’ Connor , Souter , and Kennedy , and more recently Roberts and Gorsuch—in key cases praised by liberals .
Even Scalia had his moments , though not in the most celebrated liberal cases .
And before that , Republican appointees John Marshall Harlan and William Brennan turned out to be liberals ; the former innovated the concept of privacy that led the Court to find an abortion right in the due process clause , and the latter joined Roe as one of the most liberal @ @ @ @ @ @ @ , we can ’ t forget the Nixon-appointed Harry Blackmun , who authored Roe itself .
With Barrett ’ s confirmation , Republicans will have appointed nearly three times the number of Justices that Democrats have since Roe v. Wade .
Despite the certainty of both sides that this time is really different , I still can ’ t shake the sense that I ’ ve watched this scene before .
Charlie Brown is running to kick that football yet again .

My one real conversation with Justice Ruth Bader Ginsburg took place in 2004, when I was a law clerk for Justice David Souter. Ginsburg invited my colleagues and me for tea in her chambers, where she served pastries baked by her husband. Ginsburg recalled the initial revelation of the term “sexual harassment,” which put a name to a phenomenon that, she said, “every woman” understood. Among her stories was one that is widely known today, about the sexism of the nineteen-fifties. When Ginsburg was a student at Harvard Law School, the handful of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man. Four decades later, when Justice Byron White, who had dissented in Roe v. Wade, retired from the Supreme Court, the spot that opened up did not go to a man but to Ginsburg, who by then was a judge on the D.C. Circuit and a longtime heroine of the women’s movement. And, in just a few weeks, her seat will likely be occupied by another woman, the Court’s fifth ever: Amy Coney Barrett, another circuit-court judge and a former professor at Notre Dame Law School, whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg’s legacy.
When President Trump announced Barrett’s nomination, on September 26th, she paid homage to Ginsburg, who “began her career at a time when women were not welcome in the legal profession,” and promised that, if confirmed, she will “be mindful of who came before me.” But Barrett, who clerked for Justice Antonin Scalia, is a conservative; she said that Scalia’s “judicial philosophy is mine, too.” During her confirmation hearings, she has been asked to justify replacing a great liberal feminist Justice, taking a spot that, after the election, could perhaps have gone to a Democrat.
In February of 2016, Barrett, then at Notre Dame, gave her opinion on making Supreme Court appointments close to an election. Just days after Scalia died, and a month before President Obama nominated Merrick Garland to take his seat, Barrett was interviewed on CBS News about Senate Republicans’ nascent claim that, in Senator Marco Rubio’s words, “Presidents don’t nominate Supreme Court Justices during election years.” Barrett rejected that assertion, given that there had been six such confirmations in the twentieth century, saying, instead, that “the Senate is willing to push a President’s nominees through in an election year when they share the same political affiliation.” In the past century, she recounted, the only Supreme Court confirmation during an election year when the Presidency and the Senate were controlled by different parties was that of Justice Anthony Kennedy, a moderate Republican who replaced a moderate Republican, in 1988. Practically, she concluded, “the President has the power to nominate and the Senate has the power to act or not, and I don’t think either one of them can claim there is a rule governing one way or another.”
Barrett’s analysis was a subtler elaboration on Senate Majority Leader Mitch McConnell’s eventual position: that confirming a Republican nominee on the eve of the 2020 election could be squared with refusing to act on a Democratic nominee in 2016. Several Democratic Senators refused to meet with Barrett during such an “illegitimate sham process,” as Senator Richard Blumenthal put it—but this tragedy for liberals and windfall for conservatives, stemming from Ginsburg’s decision not to retire, as an octogenarian, during the Obama Administration, was easily foreseen. Two other liberal Justices with whom Ginsburg served, Souter and John Paul Stevens, both of whom were appointed by Republican Presidents, retired during Obama’s Presidency. Two years before Ginsburg joined the Court, the great liberal Justice Thurgood Marshall retired, and President George H. W. Bush nominated Clarence Thomas to replace him. A majority of Americans now say that the next President should appoint Ginsburg’s replacement. But President Trump and the Republican Senate have the ability to make the appointment, and few believe that Democrats would behave differently if they were in power.
As a Catholic conservative woman taking the seat of a feminist icon, Barrett faces demonization on the left and equal lionization on the right. We saw a version of this play out in 2017, during Barrett’s confirmation to the Seventh Circuit. Senator Dianne Feinstein said in that confirmation hearing that “so many of us on this side have this very uncomfortable feeling,” because “the dogma lives loudly within you.” Conservatives took Feinstein’s statement as anti-Catholic slander that flirted with violation of the constitutional provision that “no religious test shall ever be required as a qualification to any office.” The phrase “the dogma lives loudly within you” quickly became a defiant T-shirt slogan, sealing Barrett’s status as a heroine among conservative activists.
Barrett—who, if confirmed, will raise the number of Catholics currently on the Court to a whopping six—has made Catholicism central to her intellectual identity, speaking and writing about her faith. As a young lawyer, she tackled the question of Catholic judges’ religious consciences head on. In a law-review article, published in 1998, Barrett and her co-author, John H. Garvey, wrote that a Catholic trial judge who believes that the death penalty is immoral should recuse herself from any cases that could result in a death sentence, because “setting the wheels of injustice in motion” is morally wrong and violates conscience. Barrett and Garvey suggested that an appellate judge is differently situated, because she is not usually imposing a sentence but rather affirming or reversing one after hearing procedural or other legal challenges. The two co-authors concluded that a Catholic appellate judge “should enforce the law in easy cases, even if he could save a life by cheating.”
The article didn’t directly address the judging of abortion cases, but it did refer to the Church’s position that abortion is “always immoral” and that the prohibition against it is “absolute.” Barrett herself stated, in 2013, that she believes life begins at conception; in 2006, she signed a statement, published as a newspaper ad, that declared, “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” That said, Barrett’s stated views don’t appear to indicate that she would vote her religious conscience over and above legal obligations; if they were ever to come into direct conflict, her proposed solution is recusal. During Barrett’s confirmation process in 2017, she told the Senate that her belief in the immorality of abortion “will have no bearing on the discharge of my duties as a judge.” And, on Tuesday, she stated that she has “no agenda to try and overrule” Planned Parenthood v. Casey, the Court’s abortion-rights precedent, adding, “I have an agenda to stick to the rule of law and decide cases as they come.”
Democrats appear to have learned from Feinstein’s example to avoid questions about whether Barrett is dogmatically or obscurely devoted to a higher fealty, in favor of actually engaging her conservative jurisprudence disfavoring abortion rights, and without stoking fear of her religion. During her three years on the Seventh Circuit, Barrett has twice dissented from the court’s refusal to rehear cases that struck down several of Indiana’s restrictions on abortion. In one case, the state had created a new requirement that when minors seek abortions, their parents or guardians must be notified, even if a judge has concluded that the minor is mature enough to make her own decision. Barrett joined a dissent objecting to her colleagues’ ruling that the law could not take effect while the state went to the Supreme Court. The other case challenged a state law that prohibited abortion sought solely because of the fetus’s race, sex, or disability, and another that disallowed disposal of fetal remains as surgical waste. A panel of Barrett’s colleagues struck down both restrictions; the state then asked the full court for rehearing only on the issue of fetal remains. When the court refused, she joined a dissent that argued that restricting methods of remains disposal is not an “undue burden” on the abortion right under Supreme Court precedents, and called the selective-abortion legislation an “anti-eugenics law.” Her dissent was vindicated last year by seven Supreme Court Justices, who reversed the Seventh Circuit panel on the issue of fetal remains, and by Justice Thomas’s concurring opinion, which claimed a connection between contemporary abortion rights and the early-twentieth-century eugenics movement.
Days before the November, 2016, election, Barrett, then a law professor at Notre Dame and a promising conservative judicial prospect, commented on how a future Supreme Court might change abortion rights: “Roe’s core holding that, you know, women have a right to an abortion—I don’t think that would change,” Barrett said. “But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics—I think that would change.” Such remarks, combined with Barrett’s judicial record, allow for a confident prediction that, as a Justice, she would vote to narrow the abortion right. The process will be more complicated than Trump suggested in his grandiose campaign promise that, because of his Supreme Court appointments, overturning Roe “will happen, automatically.” With a majority of the country in support of both keeping Roe and placing some restrictions on the abortion right, the best bet is that, even with the addition of Barrett, we’ll see Roe meaningfully curtailed but not eliminated, particularly at a time when the Justices must be very concerned about the Court’s fragile legitimacy, particularly given the heat of proposals for Congress to add more Justices or to impose term limits on them.
Some conservatives have in recent years advanced an outré argument that fetuses might have personhood-based rights, which might make abortion bans not just permissible but constitutionally required. It seems improbable that Barrett would interpret the due-process clause so expansively, or that there would be five votes for that. The modern judicial-conservative program has been to constrict rather than to expand the clause’s substantive reach, and to leave fundamental moral questions to the states. That approach has led Barrett to voice support for the reasoning of the dissenters in Obergefell v. Hodges, which, in 2015, declared a constitutional right to same-sex marriage. She has said that the issue in the case was not whether the Court was “for or against same-sex marriage” but rather “who gets to decide whether we have same-sex marriage or not.” Barrett clearly would have been in the dissent in Obergefell, but, as with Roe, it’s not clear that she would simply vote to overturn it, any more than Chief Justice John Roberts would relish the Court’s crudely effecting a direct reversal of a recent decision or important landmark.
It’s obvious that Barrett’s meteoric career is in part a result of doors opened by the legal movement for gender equality, which Ruth Bader Ginsburg led, around the time that Barrett was born. In the early seventies, Ginsburg litigated landmark cases that persuaded the Supreme Court to rule against policies that treated individuals differently simply “on the basis of sex.” Commentators have pointed to one of Barrett’s cases, in particular, as a troubling sign of her alleged anti-feminism, and the risk that she would undo Ginsburg’s legacy. In 2019, writing for a unanimous panel of judges, Barrett denied Purdue University’s motion to dismiss a male student’s claims that the school violated due process and Title IX by using fundamentally unfair procedures to decide that he had committed sexual violence. Speaking about that case, Emily Martin, the vice-president for education and workplace justice at the National Women’s Law Center, recently described Barrett to the Washington Post as “a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”
Justice Ginsburg did not have a chance to decide a Title IX case about college sexual-misconduct procedures. But, in an interview about the #MeToo movement in The Atlantic, in 2018, she told Jeffrey Rosen that she believed some college sexual-misconduct procedures were unfair. “The person who is accused has a right to defend herself or himself,” she said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” Asked about how to “balance the values of due process against the need for increased gender equality,” she said, “It’s not one or the other. It’s both.”
Ginsburg’s comments sit well with her groundbreaking gender-equality theories from the seventies, when she won cases challenging benefits that were given to women and denied to men on the basis of underlying gender stereotypes: a housing allowance for service members’ wives but not husbands; survivor benefits for widows but not widowers; a lower drinking age for women than men; and an option for women but not men to skip jury duty. It makes sense that Ginsburg would take a similar approach to sexual-misconduct cases, in which the accused are predominantly men, believing that not allowing them fair process would undermine rather than promote gender equality. To the extent that Barrett’s Title IX and due-process decision reflects her views on gender equality, they would be hard to distinguish from Ginsburg’s and many liberals’ (not to mention my own).
Abortion aside, I’ve seen little indication that Barrett would be inclined to undo the gender-equality concept that centrally defines Ginsburg’s legacy. In 2018, Barrett affirmed a Title VII decision in favor of a Black male butcher who was sexually and racially harassed by his male co-workers, writing that a reasonable jury could conclude that he was tormented “because of his sex.” On the contested issue of transgender bathroom access, Barrett said, in 2016, “When Title IX was enacted, it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result at that time. Maybe things have changed so that we should change Title IX.” Barrett was suggesting that Congress, rather than the courts, was responsible for updating Title IX protections. But after the Court’s decision this past summer in Bostock v. Clayton County, in which Justice Neil Gorsuch and Chief Justice Roberts joined with four liberals to determine that Title VII’s prohibition of workplace discrimination “because of sex” protects gay and transgender people, the Court’s majority, which may well include Barrett, will likely interpret Title IX’s ban on discrimination “on the basis of sex” as protecting transgender students.
One question that has become a focus of the confirmation fight is whether Barrett might help Trump undo the most significant aspect of President Obama’s legacy, the Affordable Care Act. The week after the election, the Supreme Court will hear arguments in a case challenging the law, and if the confirmation goes according to the Republicans’ plan, the case will be among the first on which Barrett will sit. In 2012, Chief Justice Roberts famously saved Obamacare from being declared unconstitutional, by interpreting the penalty for individuals who do not purchase health insurance as a “tax” rather than as a command to purchase insurance. But in 2017, Republicans eliminated that tax, which now raises the question whether the provision is still a constitutional exercise of Congress’s power, and, if not, whether the entire law now must fall. As a law professor, Barrett wrote that the Chief Justice’s interpretation “pushed the Affordable Care Act beyond its plausible meaning to save the statute,” a view shared by many conservatives, but hardly limited to them. This comment has led Democrats to extrapolate that she would now vote to invalidate the entire health-care law, though there is little evidence on how she would actually decide and not all legal conservatives seem convinced of the arguments for striking it down. The Democrats have heavily emphasized the A.C.A. in Barrett’s confirmation hearings as a political strategy, less than three weeks before the election in which they hope to take the Presidency and flip the Senate. Regardless of Barrett’s position, however, the broad popularity of the A.C.A., particularly during the pandemic, makes it likely that five Justices will find a way to preserve the protections of the health-care law—and, more important, that Congress would act if they do not.


newyorker--2020-10-14--Susan Collins Concerned That Amy Coney Barrett Too Indecisive

WASHINGTON ( The Borowitz Report ) —Calling the Supreme Court nominee ’ s testimony “ worrisome , ” Senator Susan @ @ @ @ @ concerned that Amy Coney Barrett is too indecisive to sit on the nation ’ s @ @ @ @ @ she was asked a question , she often appeared hesitant , evasive , and wishy-washy @ @ @ @ @ “ That ’ s no way for a person serving in a high government position @ @ @ @ @ from Maine said that Barrett ’ s dithering verged on being “ annoying and even @ @ @ @ @ people deserve decisiveness from their public officials , not relentless shilly-shallying , ” Collins said @ @ @ @ @ sort of vacillating that makes people despise you.
” Asked whether she would ultimately vote @ @ @ @ @ waited for a full minute before responding , “ I am deeply troubled and concerned @ @ @ @ @ from her to date , but would need to hear more before I could come @ @ @ @ @ on that .
”

WASHINGTON (The Borowitz Report)—Calling the Supreme Court nominee’s testimony “worrisome,” Senator Susan Collins said that she is concerned that Amy Coney Barrett is too indecisive to sit on the nation’s highest court.
“When she was asked a question, she often appeared hesitant, evasive, and wishy-washy,” Collins said. “That’s no way for a person serving in a high government position to behave.”
The Senator from Maine said that Barrett’s dithering verged on being “annoying and even aggravating.”
“The American people deserve decisiveness from their public officials, not relentless shilly-shallying,” Collins said. “This is the sort of vacillating that makes people despise you.”
Asked whether she would ultimately vote to confirm Barrett, Collins waited for a full minute before responding, “I am deeply troubled and concerned by what I have heard from her to date, but would need to hear more before I could come down one way or another on that.”


newyorker--2020-10-14--62 of the Best Documentaries of All Time

This has been no sharp break but only an intensification of the last few years of my movie-watching , which have offered a plethora of rediscoveries ( thanks to the ardent connoisseurship of repertory programmers ) and have given a new urgency to my viewing of documentaries ( thanks to changes in the field ) .
Nonfiction filmmaking has been undergoing an aesthetic revolution over the past decade or so , one that parallels the major change in fiction filmmaking , namely , a shift toward personalization .
The main expression and key movement in that change is mumblecore , @ @ @ @ @ @ @ its luminaries , its aesthetic , and its ideas .
Mumblecore ’ s documentary counterpart is creative nonfiction , an idea that ’ s rooted in the filmmaker ’ s presence , be it physical or virtual , and in the conspicuous display of process .
The artistic preoccupations of the new generation of documentary filmmakers don ’ t break with those of earlier generations ; rather , they have their roots in decades-old films , in which the same ideas and practices sometimes turn up in forms—embodying the filmmakers ’ relationship to @ @ @ @ @ @ @ .
The most artistically advanced documentaries are those in which the participants are engaging conspicuously with the filmmakers ; in their most radical forms , they show the influences , inspirations , or perturbations that the people onscreen experience from the filmmakers ’ presence .
Which is another way of saying that , although documentaries follow real people , their crucial material and subject is nonetheless performance .
Throughout its history , the very idea of documentary filmmaking has shifted according to what was—and was not—possible at any given time , owing to @ @ @ @ @ @ @ cameras in the silent-film era were cumbersome , it was hard for filmmakers to be present at events as they unfolded , which is why much early documentary filmmaking involves reënactment , or what might now be called docudrama .
Many of the earlier films on my list , such as “ The Forgotten Frontier ” and “ Farrebique , ” fall into this category : they show events replayed by the very people who had experienced them in real life .
The arrival of synch sound did not instantly revolutionize documentaries , @ @ @ @ @ @ @ early sound-recording equipment was extremely difficult to bring on location and because filmmakers were slow to make significant use of it in the studio .
Instead , the first great revolution in documentaries came only in 1960 , after lightweight synch-sound equipment was developed , to go with lightweight cameras .
The result was cinéma vérité , or direct cinema , as exemplified by Jean Rouch and Edgar Morin ’ s “ Chronicle of a Summer ” and Robert Drew ’ s “ Primary.
” Yet this revolution quickly led to a paradox @ @ @ @ @ @ @ allowed filmmakers to thrust themselves into the action , evoking a sense of involvement , of being implicated , and fostering a far more intensely personal mode of documentary filmmaking .
On the other hand , the power of lightweight synch-sound equipment and the relative ease of its use fostered a countervailing type of cinema , one that , in ostensibly observing and recording events objectively , rendered filmmakers even less visible and audible than before—the so-called fly-on-the-wall approach to documentary filmmaking .
That soon became the new convention , even the new @ @ @ @ @ @ @ revolution in subject matter and perspective—the liberations of the sixties—that had its own dramatic effect on the art form .
The first great period of documentary filmmaking ran from 1960 to about 1980 , when , relying on new equipment , filmmakers responded to—and advanced—social progress by fusing the personal and the political in their art ( as in “ Symbiopsychotaxiplasm ” and “ Joyce at 34 ” ) .
New video technology helped : it enabled filmmakers to record for longer periods without interruption and with even smaller crews .
When lightweight @ @ @ @ @ @ @ , it sparked the recent and ongoing second revolution in documentary filmmaking , making the camera a virtual extension of the filmmaker ’ s body and integrating filmmaking with daily and private life .
The outpouring of astoundingly creative and personal documentaries in recent years is the result of those technical advances and of a renewed and deepened sense of the inseparability of the political and the personal , the breaking down of the barriers between the public and private realms .
Documentary filmmakers are creating new forms that pursue political progress through @ @ @ @ @ @ @ of new media .
Note that this list does not distinguish between short and feature films , either on artistic or practical grounds .
Shorts have been a major source of cinematic ideas outside the mainstream , and they have also been relatively accessible to many great filmmakers—notably , women and Black directors—who , having been kept out of even the art-house mainstream , have struggled to find the resources to make features .
The presence of documentary filmmakers in their films isn ’ t itself an aesthetic idea ; neither is the @ @ @ @ @ @ @ some famous films that rely on both which I haven ’ t included on this list ; there has also been a trend in recent decades toward personality-based documentaries , which exploit leading aesthetic currents rather than advancing or deepening them . )
There ’ s no empirical criterion to define a movie ’ s artistic dimension , which is , instead , a matter of composition , style , experience , and of imaginative confrontation with the times .
There ’ s no aesthetic pleasure , obviously , in contemplating horrors such @ @ @ @ @ @ @ , or cruelty , in the private or public sphere .
Beauty is found , rather , in the acts of determination , engagement , and revelation , which , in turn , serve as a mode of transmission .
The forms and styles with which filmmakers embody experience and ideas lock into a viewer ’ s receptors , effecting not merely a transfer of information but an emotional , even an unconscious , transformation of the viewer—and , so , of the future .
It ’ s about the most ordinary of @ @ @ @ @ @ @ the very limits of the representable .
The villagers of Svanetia , an isolated mountainous region in then-Soviet Georgia , are dying from lack of salt , and Kalatozov shows their agonies in terrifying detail , before Soviet workers arrive to build the roads that will open the region to shipments ( including of salt ) from other parts of the country .
The film is a work of overt political propaganda , yet Kalatozov gives the impression of filming in a state of horror and shock .
The only film directed by @ @ @ @ @ @ @ Breckinridge , is an early work of extraordinary documentary portraiture—and adventure .
It consists of a series of dramatic reconstructions , filmed on location in rural Kentucky , involving the Frontier Nursing Service , which was founded by Breckinridge ’ s cousin , also named Mary .
The documentary shows Mary ’ s cousin and other actual nurses as they bring medical care to remote areas of Appalachia .
Along with tense and poignant medical and familial dramas , the director evokes her own self-aware participation in the story by way of her @ @ @ @ @ @ @ Vertov ’ s first sound film is a story of Soviet industrialization that overcomes the hostility of—or , rather , lays waste to—organized religion .
It ’ s a story of forced enlightenment that takes as its very premise the rise of mass media , by way of radio .
Vertov ’ s use of sound is as ecstatic as his cinematography : contrapuntal , impressionistic .
The film ’ s sense of form is as thrilling and hectic as the revolutionary ardor that motivates it .
A film of advocacy on behalf @ @ @ @ @ @ @ work of the urbanist Catherine Bauer , this documentary expresses philosophy and social analysis with a passion that ’ s embodied in the content and editing of its images and in its ardently declaimed commentary .
Its historical reënactments and newsreel footage give rise to a wall-to-wall monologue that looks ahead to latter-day essay-films .
While working with the U.S. Army Signal Corps during the Second World War , Huston films veterans at a Long Island mental hospital who endured mental trauma as a result of combat in that war .
The inclusion @ @ @ @ @ @ @ with patients gives voice to stifled memories of the war ’ s horrors , away from official celebrations of victory .
( In all likelihood , that is why the Army banned the film until 1981 . )
This is a documentary that ’ s centered on the power of language , whether in legal wranglings or in the transmission of family history from grandparents to grandchildren .
Filming at his own family ’ s farm in the South of France , Rouquier recruits his relatives to play roles closely resembling their real @ @ @ @ @ @ @ over the course of a year .
A documentary as first-person essay from Hurwitz ( who soon after was blacklisted under McCarthyite inquisitions ) , this film looks closely and furiously at a bitter paradox : Black veterans return from fighting against Nazism in the Second World War only to face Jim Crow laws and unchallenged racism at home .
Made at a mere ten years ’ remove from the Second World War—as official France was ignoring the Holocaust and the deportations of Jews from France—Resnais ’ s short documentary fuses present-tense scenes @ @ @ @ @ @ @ and archival images , evoking the Holocaust , and the politics that led to it , in terms of the struggle to recover stifled memories and presenting the clarity of memory as essential to political progress .
The founding work of cinéma vérité ( the term was invented by Morin to describe the film ) , this film is also a crucial work of reflexive cinema , showing the filmmakers preparing to approach people in the streets of Paris and ask them whether they ’ re happy , and proceed to their on-camera @ @ @ @ @ @ @ the Algerian War , and the Nazi Occupation—along with their own self-critical depictions of watching , showing , and discussing their work .
Anderson was among the first Black female documentary filmmakers , and here she presents American racial conflicts , in both North and South , with a jolting sense of immediacy , and conveys the newly liberated discourse of civil-rights advocates—along with the performative concern-trolling of white counter-protesters .
Robert Drew , whose film “ Primary , ” from 1960 , launched the documentary form of direct cinema in the United @ @ @ @ @ @ @ to desegregate public schools in New Orleans , encompassing both the violent opposition of white residents and the experiences of Black families who are the targets of violence .
Lopes ’ s film is a collaborative docu-drama , in which the aging Portuguese boxer Belarmino Fragoso plays himself , as his career is ending .
Belarmino speaks at length in interview scenes that are as revelatory—of himself and his times—as his reënactments of his daily routine , which Lopes films with a keen eye to Belarmino ’ s many modes of self-conscious self-presentation @ @ @ @ @ @ @ films James Baldwin on a tour of San Francisco ’ s predominantly Black neighborhoods that ’ s led by the community activist Orville Luster .
While recording Baldwin ’ s illuminating discussions with Luster , Moore also observes Baldwin as a virtual reporter , interviewing Black residents of the city and eliciting comment from voices rarely heard in American cinema .
Pasolini brings intimate experiences into public light in this documentary , in which Italians talk on-camera about sex , freely , candidly , comedically , confrontationally .
In recording their commentary , @ @ @ @ @ @ @ behind rigid societal exclusions and oppressions .
The New York-based filmmaker William Jersey , who ’ d been raised in a fundamentalist Christian family and was still practicing at the time , was hired by the Evangelical Lutheran Church to make a film about racial tension within their ranks .
The remarkable film he made follows parishioners of an all-white church in Omaha as they come into conflict over their minister ’ s plans for voluntary outreach to Black congregations .
Jersey elicits extraordinary candor from the film ’ s white participants , @ @ @ @ @ @ @ ’ s Black community who speak openly to him of the deep-rooted bigotry that they endure—and of Jersey ’ s own inevitable participation in it .
Filmed in a single night in Clarke ’ s rooms in the Chelsea Hotel , this film consists entirely of an on-camera interview of her friend Jason Holliday , a gay Black man and a self-described hustler .
Pinpointing the agonizing pressures of history in the self-revealing and self-flaying confessions of a single soul , Clarke , one of America ’ s most original independent filmmakers , @ @ @ @ @ @ @ personal filmmaking—a cinematic address in the second person singular .
The point was simply being there ; the camera rolls and Bruce performs , in what turned out to be his penultimate public appearance , from 1965 .
Amid the hilarity , the profundity , and the audacity , hypocrisies and orthodoxies shatter .
The film ’ s minimal , spartan approach provides a better cinematic showcase for onstage performance than succeeding generations ’ more elaborate presentations have ever done .
More than two decades before “ Paris Is Burning , ” Simon @ @ @ @ @ @ @ pageant in New York .
The film features extraordinarily candid and intimate discussions among gay men—at a time when homosexual behavior and drag itself were illegal—along with scenes of drag queens ’ physical transformations that break the boundaries between performance and private life .

William Greaves’s multilayered metafiction—based on a scripted scene of a couple in crisis—is a documentary about the very nature of fictional films, and the authority of a director trying to make them. Greaves films himself, his actors, and his crew at work in Central Park, interacting with one another and with whomever happens to be there, and also includes the crew’s own critique of his methods and even his character.
(1970, D. A. Pennebaker)
In this documentary of the making of a studio recording, Pennebaker captures performances of a historic greatness (especially by Elaine Stritch), filming with a sensitive synergy in long and probing takes that shiver with his own excitement and sense of collaborative energy..
(1971, Jean Eustache)
Eustache’s film consists almost entirely of an extended interview with his grandmother Odette Robert. He elicits her intimate horror stories, which seem to fuse with the modern history of France as well as with the substance of his far more celebrated fiction films (such as “The Mother and the Whore”) and with his own sense of identity.
(1971, Julia Reichert and Jim Klein)
Through a series of interviews with a multigenerational and multiethnic group of women living near her home town, in Ohio, Reichert explores the gender-centered pressures tacit in her environment and reveals the indoctrinations that she and other women experience from media controlled mainly by men. Though the film runs only forty-nine minutes long, it encompasses a vast historical scope.
(1972, Joyce Chopra and Claudia Weill)
Another pioneer of first-person filmmaking, Chopra begins by documenting the birth of her daughter and goes on to examine the connection between her work as a filmmaker and her family life—and also, through interviews with her own mother, a retired schoolteacher, confronts and contextualizes her own efforts at balancing work and home.
(1972, Sarah Kernochan and Howard Smith)
In this film, which won an Oscar for Best Documentary Feature before disappearing from circulation (it was restored and reissued in 2005), Marjoe Gortner, who had been a child-star preacher, returns to the pulpit as an adult for a farewell tour, which he uses to repudiate the world of organized religion. His riveting stage persona fills the screen with the ecstasy and the skepticism of the age of rock; he collaborates with the filmmakers to reveal the tricks of his trade and, in on-camera discussions, discloses the painful story of his exploitation.
(1973, Orson Welles)
Taking off from investigations of an art forger and a literary fraudster, Welles’s wide-ranging, richly ironic, and loftily speculative personal-essay film puts the very distinctions between documentary and fiction, and between first-person declaration and journalistic exploration, under kaleidoscopic scrutiny.
(1974, Pere Portabella)
The very existence of this movie—a clandestine gathering of former political prisoners of the Franco regime, filmed while it was still in power—is a miracle, and Portabella, a director of highly stylized dramas, finds simple forms that give physical presence to the reports from the depths of political horror.
(1975, Frederick Wiseman)
Frederick Wiseman, the great documentarian of bureaucracy in action, here also spotlights the contrast between dispassionate functionaries and the anguish of their put-upon and desperate supplicants. It’s a film about the gap between the letter and the spirit of the law—and about the modes of behavior, or performance, that result.
(1976, Albert Maysles, David Maysles, Ellen Hovde, and Muffie Meyer)
The implicit performances of documentary subjects are at the center of all of the Maysles brothers’ major films, but never more emphatically than in this one. Their view of the chaotic decline of the two Edith Beales, mother and daughter—and the desperately antic theatre of shattered dreams that they present—is inseparable from the Maysles’ own tensely compassionate implication in their subjects’ lives.
(1976, Martha Coolidge)
Coolidge’s effort to dramatize her experience of being raped, when she was a teen-ager, is the anguished and profound core of this documentary, in which she collaborates with an actress who was also a victim of rape and considers the implications, even the very possibility, of dramatizing such an experience.
(1975-79, Patricio Guzmán)
Guzman’s documentary in three parts, filmed in 1972 and 1973, anticipated, with a sense of prophetic foreboding, the violent opposition to the government of Chile’s President Salvador Allende. Guzman filmed the end times of the regime, under rightist and American pressure, from within.
(1977, Chris Marker)
This three-hour documentary is a vast intellectual history, putting the momentous events of 1968, in France and elsewhere, under Marker’s political microscope. (Spoiler alert: he instead locates the era’s key political events in 1967.) Aided by furious archival explorations and his expansively trenchant voice-over analysis, Marker filters a period of global upheaval through his editing table.
(1977, Mariposa Film Group)
Considered the first documentary about gay people by openly gay people, this film features twenty-six individuals talking about their lives, at length, in detail, and with a complicit candor. In revealing their lifelong oppressions, they enact a liberation of their own voices and of society over all.
(1977, Alan and Susan Raymond)
Taking advantage of a relatively new technology, portable video equipment, the Raymonds embed with police officers at work in the South Bronx, which at the time had the city’s highest crime rate. They film the officers making rounds—at night—and talk with the visionary borough commander, Tony Bouza, whose progressive philosophy of policing embraces drastic social change.
(1979, Jean-Pierre Gorin)
Learning of a pair of San Diego twin girls who spoke a private language, the French director Jean-Pierre Gorin (who had moved to California) visited them and their family; his explorations of their linguistic issues revealed the family’s distinctive emotional world and cultural dynamic, while also evoking crucial aspects of American life over all—and Gorin’s own place in it.
(1979, Lorraine Gray)
The documentary that should have been made in the nineteen-thirties, about women who played crucial roles in strikes at General Motors factories in 1936-37, was instead made in the nineteen-seventies; as directed by Gray (and produced by Gray, Lyn Goldfarb, and Anne Bohlen), it virtually revives those events by connecting interviews with the women, forty years after the fact, to an astounding selection of archival footage.
(1982, Fronza Woods)
Fronza Woods’s short documentary brings to the screen a figure who was, at the time, virtually invisible in American movies: a sixty-five-year-old Black custodial worker. Blending interviews and observation, and using a soundtrack of Fannie telling her life story, Woods—an overlooked figure in American independent filmmaking, who has never had the opportunity to make a feature film—leaps ahead of documentary conventions, and reveals Fannie’s domestic and professional stories to be tales of epic heroism.
There is a before and an after: the agonizing twelve-year experience that went into the making of the nine-hour film, in which Lanzmann interviews survivors of the Holocaust, former concentration-camp guards, people who lived near the death camps, and historians—is clear onscreen, and the incommensurable events that the film details with an unprecedented, horrific specificity are evoked with a power beyond representation, thanks to Lanzmann’s arduously developed artistry.
(1987, Kazuo Hara)
As a soldier in the Japanese Army during the Second World War, Kenzo Okuzaki survived a virtually suicidal mission. Years later, after years of violent opposition to the regime, he travels throughout Japan to confront his former officers, and Hara collaborates with him to film these furious, even violent confrontations. The result is a clear-eyed record of a country’s ongoing, official indifference.
(1988, Tony Buba)
After making several documentaries about his home town of Braddock, Pennsylvania, Buba filmed his own efforts to make a fictional film there, starring one of his former documentary subjects. What he ended up filming is a multilayered account of his failure to make it, one that unfolds the town’s local and large-scale political conflicts and a grimly comical account of his own life.
(1992, Mark Rappaport)
In one of the most original of all essay-films, Rappaport brilliantly and empathetically connects Rock Hudson’s private life as a gay man and his public one as a movie star. A keen-eyed, clip-centered film, it is as much about the actor’s performances as about the act of movie viewing.
(1991, Jan Oxenberg)
Oxenberg seems to burst beyond the boundaries of the genre in this film about her grandmother, who was terminally ill at the time (and who died in the course of the filming). Using fantasy sequences, dioramas, a faux quiz show, and other imaginative devices, Oxenberg delves deep into family history, and into the cosmic mysteries of death. (The film should have launched her career; instead it was the last feature film she has directed to date.)
“The Devil Never Sleeps”
(1994, Lourdes Portillo)
Portillo revisits her home town of Chihuahua, Mexico, to investigate the unexplained death of her uncle, a local politician. She discovers her family's story to be a lurid melodrama of conflicting interests and political corruption, and she films it—and her childhood memories—with a labyrinthine style to match.
“A Plate of Sardines”
In this short film, Amiralay, a Syrian filmmaker (and one of the main interview subjects in Lawrence Wright’s piece in The New Yorker, from 2006, on Syrian cinema) considers Israel and the Nakba from the perspective of his childhood memories and family lore (including the titular dish), and considers the Israeli occupation of the Golan Heights and the destruction of the city of Quneitra from the perspective of moviemaking and moviegoing.
(1988-99, Jean-Luc Godard)
No filmmaker has identified so closely with the history of cinema than Godard, and no filmmaker has looked as deeply into it. This eight-part series, totalling four hours and made in the course of more than a decade, makes use of clips in a manner—involving his own hands-on video effects—no less daring or imaginative or exquisite than his creation of dramatic images. Nearly every other filmmaker’s approach to archival images seems bland and timid by comparison.
(2003, Charles Burnett)
One of the great fiction filmmakers, Burnett here deploys his dramatic artistry along with a historian’s ardor and a journalist’s probing interviews. The film is a work of cinematic historiography, examining how Turner’s life, and the rebellion he led, have been depicted and deformed over time. Burnett dramatizes historical events through a multiplicity of performances, and offers a glimpse at his own effort to film them.
(2007, Wang Bing)
This clandestinely made three-hour film, featuring extended takes running up to an hour, is composed almost entirely of an in-depth interview of a woman who, with her late husband, was a victim of China’s political repression in the nineteen-fifties and sixties. It’s an exemplary work of the embodiment of history in language and the recovery of history in real time.
(2008, Agnès Varda)
This great cinematic autobiography fuses memory and imagination in scenes that expose the artistry and the lifetime of experience that went into making them. Of all of Varda’s freely imaginative documentaries, it’s the one in which she was at her most personal, her most confessional, her most intimate, and her most inventive.
(2010, Cindy Kleine)
A virtual novel of a personal documentary, in which Kleine tells the story of her parents’ apparently happy marriage, and her own discovery of her mother’s extraordinary lifetime of secrets—of which Kleine remains, throughout the film, the uneasy guardian.
(2011, Rithy Panh)
Panh, a survivor of the Khmer Rouge regime, relies on small figurines and archival footage, as well as new interviews and his recollections, to evoke its depravities and his own family’s sufferings.
(2011, Jafar Panahi)
Under house arrest, facing imprisonment, and banned from filmmaking, the Iranian director Jafar Panahi nonetheless made a film without, strictly speaking, doing so—using a planted camera and a cell phone to record his own life in isolation and to act out one of his own unfilmed scripts with a vital urgency that surpasses acting.
(2014, Robert Greene)
Greene, the crucial theoretician-in-action of the recent wave of self-implicating and self-questioning documentaries, here films his neighbor—the actress Brandy Burre (best known for her role on “The Wire”)—and finds her private life to be a grand and poignant melodrama.
(2015, Khalik Allah)
Allah, filming and recording sound by himself, brings new energy to the observational documentary in this movie presenting his encounters with people he meets on 125th Street. With stylistic ingenuity and clarity of purpose, he reveals the practical pressures that they confront as well as the monumental intimacy of their lives.
(2015, Chantal Akerman)
The solitude implicit in Akerman’s do-it-yourself filmmaking is also a story of family. Here she turns the camera on her relationship with her aging mother—their emotional closeness and physical distance—her own virtual exile from home as a result of her international career, and her experience of an existential solitude of tragic, horrific power.
“Coma”
(2016, Sara Fattahi)
Living in Damascus with her mother and grandmother when the city was under siege from the Syrian regime, Fattahi reveals family history and political anguish with a cinematographic eye and bold juxtapositions that seem wrenched physically from the catastrophe and subjectively from deep within.
(2016, Theo Anthony)
Starting from his own smartphone video recording of a rat in a garbage pail, the Baltimore-based filmmaker travels through town to probe the city’s ongoing problem of rodent infestation and finds, through passionate research and engaging interviews, long-hidden historical outrages appearing before his eyes.
(2016, Rosine Mbakam)
Mbakam’s film takes a classic premise—the return-home story—and expands it by way of extraordinary compositional skill and a keen sense of the connections between personal and societal events. Born in Cameroon and living in Belgium, she returns to her homeland to visit her mother and other relatives and, during her travels and discussions, discovers the forms of independence that Cameroonian women have asserted in the face of a patriarchal culture.
(2017, Travis Wilkerson)