The confirmation hearing of Amy Coney Barrett is over. All that remains now is the final vote on her nomination, which Senate Majority Leader Mitch McConnell, Republican of Kentucky, has scheduled for the week of October 26.
Barrett’s full embrace of originalism is bad enough. But when compounded with her position on precedent, her outlook on the role of judges is nothing short of incendiary.
The outcome, of course, was always predestined. Barring a miracle of biblical proportions matching Barrett’s personal religious zealotry, she will be seated as the 115th Justice of our country’s top judicial body.
The conventional wisdom is that Barrett’s confirmation hearing was a “vapid and hollow charade,” as Justice Elena Kagan described the contemporary confirmation process in a 1995 law review article, written long before her own elevation to the high tribunal. “The safest and surest route to the prize,” Kagan observed, is to alternate “platitudinous statement[s] and judicial silence.”
For the most part, Barrett hewed closely to the script. Throughout the four-day ordeal, she bobbed and weaved, promising to “enforce the rule of law” and leave “policy decisions and value judgments to the political branches” of government. In accordance with the game plan of revealing only the bare minimum about her views, purportedly to avoid prejudging pending litigation, Barrett declined to disclose her positions on a host of critical issues, ranging from abortion and Obamacare to same-sex marriage, LBGTQ rights, and mail-in voting.
Barrett refused to answer questions about whether the Constitution requires a peaceful transfer of power, or if a President can pardon himself for federal crimes. She also refused to say if she believed in climate change, remarking, “I will not express a view on a matter of public policy, especially one that is politically controversial.” And, as expected, she declined to recuse herself from deliberating on any legal challenges to the 2020 presidential election that reach the Supreme Court.
Still, in two vital respects, the conventional wisdom on the substance of Barrett’s confirmation hearing is wrong. When it comes to her views on the legal philosophy of “originalism” and the importance of respecting legal precedent, Barrett exposed herself as a hardcore rightwing activist who will diligently use her lifetime appointment on the court to drive America back to the days before the New Deal and the civil rights movement.
Asked by Senator Diane Feinstein, Democrat of California, what it means to be an originalist, Barrett said: “In English, that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”
Originalism as an explicit judicial theory came into its own in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms that appear in the Constitution and the Bill of Rights, such as “freedom,” “liberty,” “due process,” and “cruel and unusual punishments,” should be understood according to the “original intent” of the Founding Fathers, rather than as historical concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.
When critics of originalism noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it “new originalism”—was popularized by the late Supreme Court Justice Scalia, for whom Barrett clerked after graduating from law school and whom she often cites as her mentor.
Instead of emphasizing original intent, new originalists like Barrett focus on the “original public meaning” of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.
All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.
In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell has noted, “[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”
Barrett’s full embrace of originalism is bad enough. But when compounded with her position on precedent, her outlook on the role of judges is nothing short of incendiary.
In a 2013 article published in the University of Texas Law Review, Barrett questioned the importance of adhering to past Supreme Court precedent decisions, writing: “I tend to agree with those who say that a Justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
Barrett took a similar position in a 2016 article she co-authored for the University of Pennsylvania’s Journal of Constitutional Law, acknowledging that adherence to precedent presents “a notoriously difficult problem for originalists.”
In her 2013 article—and again at her Senate hearing—Barrett identified a mere seven landmark Supreme Court “super precedents” that would survive strict originalist scrutiny. Super precedents, she testified, are “cases that are so well settled that no political actors and no people seriously push for their overruling.”
Highlighting Barrett’s list of super precedents are Marbury v. Madison, the 1803 ruling that established the power of judicial review and the authority of courts to strike down legislation as unconstitutional; and Brown v. Board of Education, the 1954 case that overturned the doctrine of separate but equal in public education.
Missing from the skimpy catalog is nearly every other case ever decided by the Supreme Court. The chopping block not only includes Roe v. Wade on abortion, but also such pillars of liberal jurisprudence as Griswold v. Connecticut on adult access to contraception; Miranda v. Arizona on the interrogation of criminal suspects and New York Times v. Sullivan, which extends First Amendment protections to the press in defamation lawsuits. The full list of cases that Barrett could undermine is truly astonishing.
From her time as a young lawyer working on the Republican side in Bush v. Gore to her long tenure as a law professor at Notre Dame, her past membership in the Federalist Society, and her brief stint on the Seventh Circuit Court of Appeals, Barrett has carried water for the most regressive segments of the American right. There is absolutely no reason to believe she will change direction on the Supreme Court.
Worst of all, at the tender age of forty-eight, she will likely remain on the bench for another thirty years or more.