A Dream World . . .

Amy Coney Barrett was raised in a primarily Catholic, “Christian Charismatic” community in suburban New Orleans, and, as a young adult, committed to marrying, raising a family, and remaining within this community for life. Barrett attended St Mary’s Catholic high school, then majored in English literature at Rhodes College, a small liberal arts college in Memphis, then attended Notre Dame law school. Following this, she completed a clerkship with the D.C. Court of Appeals, and then a Supreme Court clerkship for Antonin Scalia. Barrett then practiced law as an associate for two years with a small firm in Washington, later merged with James Baker’s firm Baker Botts in Houston, where she worked on the litigation team in the 2000 Bush v. Gore Presidential election dispute. Barrett then devoted the bulk of her career to teaching law at Notre Dame, focusing on constitutional law, specifically the doctrines of “stare decisis” and “Constitional Originalism”. Barrett was appointed by Donald Trump to the Seventh Circuit Court of Appeals in 2017; she has had a long term association with and varying terms of membership in the Federalist Society.

In his opening comments of the U.S. Senate Judiciary Committee hearings for the nomination of Judge Barrett to the Supreme Court, Chairman Lindsey Graham casually announced that all of the majority Republicans would vote to confirm her, eliminating any doubt whether they considered the content of the hearings relevant to the result. Barrett confined her testimony within multiple proposed parameters, repeated continually, and endorsed frequently, by her Republican political allies on the Committee. Accordingly, Barrett declined to answer questions about her personal views, her political views, her policy views, or her religious views; all on the basis that, by her own insistence, none are relevant to her interpretation of the law. Barrett refused to comment on specific cases currently before the court; those being litigated elsewhere in the judicial system; or even hypothetical cases which might potentially come before the Court; all based on her own strict view of the judicial canon of ethics. Barrett insisted that statements she has publicized in law review articles and book reviews are “academic” opinions, and so in a different context than “judicial opinions”, and therefore not relevant to her future judicial decision making. Consistent with her “Constitutional Originalist” judicial philosophy, Barrett insists the Court must not make policy, only apply the law to specific cases. According to Barrett, the Courts must set aside laws that do not comport with the strict “Originalist” view of the Constitution.

Amy Coney Barrett & Antonin Scalia -- “His Judicial Philosophy Is Mine,  Too.” | National Review
Antoni Scalia and Amy Coney Barrett

Following these restrictive parameters, responding to more specific questions, Barrett refused to commit to recuse herself from a potential Presidential election dispute this year on the basis that it would violate the Court’s process for such decisions. She refused to answer whether the President could unilaterally defer a Presidential election under the Constitution because she would have to listen to arguments, review briefs, and consult with her peers prior to answering this question. She refused to comment on whether the President should commit to the peaceful transfer of power, because “In our history, we haven’t had a situation that has arisen”.

Barrett insisted that neither her previous publicized “personal” statement demanding a ban on all abortion after conception, or her written “academic” opinion that Roe v. Wade was wrongly decided, were relevant to her future judicial decision making in abortion-related cases. In her written opinion on the Supreme Court’s recent Obamacare case, which barely preserved the overall law by one vote based on John Robert’s conclusion that the individual mandate was within the government’s broad powers of taxation, Barrett concluded that the case was wrongly decided; but Barrett repeatedly deflected the question by stating she was not criticizing Roberts personally, and that this was merely an “academic” opinion and therefore not relevant to her future judicial decision making on the issue. When asked about other “Constitutional Originalist” published opinions that Social Security and Medicare were unconstitutional, Barrett refused comment, saying she was “not familiar” with these arguments. When asked about the impact of pending decisions on immigration, health care, gay marriage, voting rights, civil rights, contraception, environmental and other issues, Barrett declined to offer opinions on any policy, as, in her mind, her policy views would not be relevant to her judicial decision making, based on her “Originalist” judicial philosophy. Barrett repeatedly insisted she would always “have an open mind” and that she “had no agenda” related to any of these major policy issues.

Barrett explained her unabashed “Constitutional Originalist” judicial philosophy, and her dedication to her intellectual mentor, Antonin Scalia, of whom she said, in her comments accepting her nomination, “His philosophy is mine too”. Barrett explained her philosophy in the hearing that “as a judge, I interpret the Constitution as law; the meaning of law does not change over time; I understand the Constitution to have the meaning that it had at the time it was ratified; this original public meaning is authoritative; and it is not up to me to update it or infuse my policy views into it.” Barrett states that the Court interprets and applies the law, but does not update the law, and does not make policy decisions; those roles are the purview of Congress. Going on, Barrett concluded that “the Constitution is a set of principles, general enough to be written in brief language, but specific enough to apply to unforeseen future circumstances”. Barrett described the competing judicial view of the Constitution as the “Living Constitution” school, which treats the Constitution’s meaning as “susceptible” to evolution over time, allowing “pragmatic” and “evolving” interpretation, with “progressive” justices interpreting the Constitution with a higher degree of generality, versus the greater degree of specificity required by the Originalists.

SCOTUS candidate Amy Barrett and People of Praise
Amy Coney Barrett

Through her long academic career, Barrett devoted her considerable intellectual talents to the study of the tension between the “Constitutional Originalist” judicial philosophy, and the principle of “stare decisis”, the validity of Court precedent. Stare decisis provides reliability of the Court’s decisions and stability of broad legal standards by which society functions over time. But Barrett states that, with the exception of a handful of “super-precedents”, which would “create chaos” if changed, the principle of stare decisis must surrender to strict “Originalist” interpretation of the Constitution, based on the meaning the original language had to its authors at the time it was ratified. But when questioned, Barrett declined to include as “super-precedents” major historic Court decisions on abortion, interracial marriage; contraception; assault weapons bans; same gender marriage; voting rights, vast areas of administrative law, and several other policy areas that are widely understood to be settled law. This clearly leaves all but a handful of these decisions open to review and potential reversal, or more likely modification, so as to avoid “chaos”, consistent with her “Originalist” doctrine. Barrett’s views seem very consistent over time, based on her 2017 Notre Dame Law Review article “Originalism and Stare Decisis”, which states the problem clearly, and in her own words, at its outset:

“Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution’s meaning as susceptible to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable. The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance and interests of those who have structured their affairs in accordance with the Court’s existing cases. But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public meaning is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis?”

Amy Coney Barrett: Trump's Supreme Court nominee hailed by right, feared by  left - ABC13 Houston

The article goes on to devote 25 detailed, footnoted pages to a highly philosophical and abstract defense of the judicial decision making of Antonin Scalia, whose viewpoint is criticized by purists of the Constitutional Originalist school, who believe Scalia has wrongly moderated his doctrinaire views out of deference to, and the importance to societal functioning, of the principle of stare decisis. Thus Scalia’s moderated view, cited in the article, “Originalism will make a difference . . . not in the rolling back of accepted old principles of constitutional law, but in the rejection of usurpatious new ones . . . I am a textualist. I am an originalist. I am not a nut”. Barrett concludes this article with the statement that “I find it hard to say that Justice Scalia did his job badly”; a strangely vague and deferential conclusion to a purported objective intellectual critique in any credible academic journal.

But Scalia also believed that the Constitution must be interpreted not based just on literal application of its specific written language, but also upon what it meant to its signatories at the time it was written, based on ancillary written texts such as The Federal Papers, written record of debates, letters, etc. at the time of ratification, to the extent they exist, and are available. However, of the 70 delegates appointed to the Constitutional Convention, only 50 attended, and only 39 signed the document, excluding John Hancock, Thomas Jefferson, John Adams and George Mason. Many departed the convention in protest of its various terms; objecting to the lack of a Bill of Rights; the Electoral College; insufficient Checks and Balances, etc.; with some protestors changing their minds later and supporting its ratification. In any case, compromised language was the means to completion of the project, so that many delegates were sure to have different interpretations of the meaning of the language, or compromised some principles in order to gain others. And every word in the English language has multiple meanings, by some degree, and since common understanding of the meaning of words, especially when strung together, can be interpreted differently. So the belief of Antonin Scalia – and his acolytes – that they alone are capable of deciphering the true meaning of this language, as if they possess the Constitution’s “Rosetta Stone”, represents an intellectual vanity approaching divine transcendence – or simple self-delusion.

“Constitutional Originalism” is based on the strong presumption that evolved Constitutional decision making by the Supreme Court over 230 years is riddled with decisions that are repeatedly described by Barrett as “in conflict” with the Constitution; as “wrong”; as “incorrect”; in comparison to the “principled” positions of the Constitutional Originalists. Thus “progressive” justices have “allowed” the Constitution to become “susceptible” to “pragmatic” interpretation with its meaning “evolving”. The stark distinctions used by “Originalists” in describing all but a handful of “super-precedents” suggest some grand conflict between past Court decisions and the Constitution, but that conflict exists only in the minds of those extremists who construe the Constitution’s language so narrowly, so rigidly, so concretely, so finely, that they seem to be competing to find ever more minuscule distinctions between their long after the fact “Originalist” views, and historic Court interpretations of Constitutional language. It is an ideological doctrine that is not only a remote philosophical abstraction, but an invention of a handful of ideologically extreme academic verbal nitpickers, who believe that they, and only they, can decipher the specific intent of the 39 signatories of the Constitution, all whom have been dead for two centuries. Any departure from their strict view, even by Justice Scalia, the primary modern proponent of this philosophy, is Constitutional heresy.

But Supreme Court Justices are not mechanics, following a written specification for repair of an automobile transmission, drawing legal conclusions that are either “correct” or “incorrect”; it is not an arithmetic test. Thus the “Originalist” view is simplistic given the flawed nature, gaps, and internal inconsistencies of the Constitution; the political compromises inherent in its terms and its language necessary for its adoption; and the long, complex, convoluted and often contradictory history of its application. In fact, all judges follow the law as it is written; that is what they are trained to do; and all Supreme Court decisions, and thus all Court precedents, are based on careful consideration, interpretation and application of the law, consistent with the Constitution, based upon understanding of the language and societal standards at the time. If, as Barrett says, “the Constitution is a set of principles, general enough to be written in brief language, but specific enough to apply to unforeseen future circumstances”, then she seems to concede the point that it is the interpretation of the written law applied to varying circumstances that requires judgement, intellectual flexibility, reasonability, and an awareness of evolving societal standards.

While Barrett insists on maintaining a state of obliviousness to all policy implications of their decisions, in order to maintain the “Originalist” purity of her opinions, Supreme Court decisions, even whether to hear a case at all, have profound policy implications, and broad impact on the rights and lives of all Americans. Ignoring policy implications, as Barrett suggests, would make the Constitution almost useless in addressing new issues confronting a changing world, issues that our government is bound to address through legislation as part of the democratic process. And that is what the Constitution was written to accomplish; in Barrett’s own words, it is a set of general principles, designed to be applied later to specific cases. The danger of Barrett’s “Constitutional Originalism” philosophy is its naivety, its rigidity; its absolutism; and especially its intolerance of intellectual diversity. This judicial philosophy is an historical fabrication that has been popularized by a handful of academic ideologues, including Judge Barrett, and the Federalist Society, which has long sought deconstruction of the administrative, regulatory and social welfare states in order to reduce the cost, while ignoring the benefits, of these governing structures. It is not the Court’s role to use the Constitution to so obstruct the government’s efforts to address public issues that the government itself becomes incapacitated; this is a recipe for anarchy. Intellectual flexibility, balanced ideological representation, and compromised decisions coordinated by the Chief Justice, have always been critical to the Court’s proper function, providing preservation of core Constitutional principles, which themselves represented compromise, while allowing the government to respond to changing public policy challenges.

Barrett’s hearing was designed to hide her true doctrinaire views, so radical they would shock the public, and representing a massive subterfuge that accomplishes a result that is highly engineered, with her cooperation, by the Federalist Society and their libertarian Republican supporters represented on the Judiciary Committee. She has built a career out of pointing to the Supreme Court’s numerous departures from Constitutional standards, and now wants to be appointed to the Court without explaining what those are. It is not surprising that Barrett’s distinction between her “academic’ writing and “judicial decision making” isolated almost all of her published legal analysis, as almost her entire career has been in academia. In fact she has very little actual legal experience, two years practicing law as a junior associate, and three more as an appellate judge. Barrett’s cavalier disregard for the public policy outcome of the long, slow, difficult, democratic, legislative process, as if it were all a giant roulette wheel simply awaiting another spin, as she applies her strict, mystically deciphered “Originalist” Constitutional interpretations, is naive. Barrett’s nomination warns of what Senator Mike Lee (R-UT) openly acknowledged in his concluding comments, “Judge Barrett will restore integrity to the Court, and overturn the leftist, judicial abuse that has twisted and desecrated our institutions for two generations”. The excessive restrictive boundaries around Barrett’s hearing responses provided a tactical benefit to the Republicans, allowing Barrett to avoid detailed responses about her views. But her extraordinary religious lifestyle suggest there is little credibility to her insistence that her personal views will not influence her judicial decisions. Her cloistered personal and professional experience, and her very limited judicial experience, make Barrett’s background both inappropriate and deficient given the weight of the position to which she is being elevated. While Antonin Scalia declared himself “not a nut” in his Originalist views, in the case of his acolyte, we await the outcome with foreboding.

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