President Donald Trump will nominate a Supreme Court justice to replace Justice Ruth Bader Ginsburg on Saturday. Amy Coney Barrett, a judge on the 7th Circuit Court of Appeals, is widely considered the frontrunner. When Trump was deliberating on whom he would nominate to replace Justice Anthony Kennedy, the president said of Barrett, “I’m saving her for Ginsburg.”
But is Amy Coney Barrett an originalist? Would she rule according to the original public meaning of the Constitution and federal laws? Does she fit the mold of the late Justice Antonin Scalia?
First off, what is originalism and why is it important?
Over the last 70 years, the Supreme Court adopted a “living Constitution” model by which it unilaterally amended the Constitution in order to advance certain causes. Perhaps the most notable abuse is Roe v. Wade (1973), in which the Court twisted the 14th Amendment in order to “find” a right to abortion and strike down state laws on the killing of unborn babies in the womb. Nevermind the fact that the 14th Amendment does not mention abortion. Nevermind that when Congress passed the 14th Amendment, America was tightening abortion laws, not loosening them.
If the Founders had wanted the Supreme Court to unilaterally revise the Constitution, they would not have explicitly laid out a process by which the American people can amend the Constitution (Article V).
Originalism involves rejecting the “living Constitution” model and abiding by the original public meaning of the Constitution and the laws at the time they were passed.
Last year, Barrett spoke about her convictions at an outpost of my alma mater, Hillsdale College’s Kirby Center in Washington, D.C. She firmly contrasted her view of originalism with the “living Constitution” approach (not her words) that dominated the Supreme Court in previous decades.
“If the judge is willing not to apply the law but to decide cases in a line, in accordance with personal preference rather than the law, then she’s not actually functioning as a judge at all. She’s functioning as a policymaker,” Barrett explained.
“And I would have had no interest in the job if the job was about policymaking and about making policy decisions,” the judge said. “My interest is in contributing to our tradition of judges upholding the rule of law.”
Barrett also addressed the increasing political polarization centered on the Supreme Court.
“There’s a lot of talk these days about the courts being mere political institutions. But if we reduce the courts to mere politics, then why do we need them? We already have politicians. Courts are not arenas for politics. Courts are places where judges discharge the duty to uphold the rule of law,” she said.
Yet the judge insisted that the Supreme Court is not partisan, not divided along the lines of Republicans and Democrats.
“So I don’t think that five-four decisions or splits on courts are explicable by partisan commitments or by outcomes in particular cases. I think they’re explicable by starting points, by first-order commitments. So there are differences in ways that judges approach the enterprise of interpreting the Constitution,” Barrett explained.
“I’ll give you a couple of examples. All judges think that the original meaning of the Constitution—its history, the way that it was understood by those who ratified it, who drafted it, the founding generation—all judges take that as a data point, as relevant,” she said. “Those who are committed to originalism treat it as determinative when the original meaning is discernible. Others just treat it as a data point, but one that would not necessarily control. So that will yield different outcomes in different cases.”
“It’s the same thing with the constitutional text,” Barrett added. “Some judges take an approach to the text that says, ‘Listen. If the text is clear, that’s non-negotiable.’ Others take an approach to the text that treats it as having a little bit more play in the joints.”
“Some judges approach the Constitution saying, ‘There are some constitutional commitments that we’re not going to back down from because the Constitution enshrines them. But with respect to those that the Constitution does not speak, we’re going to leave it to democratic majorities to work out.’ Others see the Constitution as having a more amorphous and evolving content and speaking to evolving values and majority—evolving values in ways that then democratic majorities don’t have the freedom to make choices,” the judge explained.
Barrett went on to cite Scalia, who “used to say that a judge who likes every result that she reaches is not a very good judge. In fact, she’s a very bad judge. The law simply does not align with a judge’s political preference or personal preference in every case.”
She praised two legal figures: John Adams and Supreme Court Justice Robert Jackson. Adams, a patriot, decided to represent the British soldiers involved in the Boston Massacre, taking up an unpopular case and representing people with whom he disagreed because he believed they had a right to a fair trial. Jackson, a friend of President Franklin Delano Roosevelt whom FDR appointed to serve as solicitor general, attorney general, and Supreme Court Justice, ruled against FDR’s policy of interning Americans of Japanese heritage during World War II.
“Jackson did not allow whatever personal loyalty or affection that he had for Roosevelt influence his decision in that case,” Barrett explained. He put duty over politics.
Barrett also focused on the symbol of the Supreme Court justice’s black robe. Before Chief Justice John Marshall, justices did not wear simple black robes but more ornate robes. Now, justices follow Marshall’s example.
“The black robe doesn’t express individuality, and a judge should not be deciding cases in accordance with her individual preferences. The black robe symbolizes that all judges share a dedication to the rule of law, that we are engaged in a common enterprise of applying the law and doing our best job at it. Justice should not turn on what judge you get. It should turn on what the law requires,” Barrett explained.
So yes, Amy Coney Barrett is very much an originalist in the mold of Antonin Scalia. Perhaps that should be no surprise, considering she clerked for Scalia at the Supreme Court.
Barrett has exactly the right mentality and approach to the law. America would be well-served if Trump nominates her.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.