New Supreme Court Justice will deliver humility and restraint to Supreme Court
Published 3:32 pm Tuesday, October 27, 2020
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By HERBERT H. SLATERY III
& JONATHAN SKRMETTI
Judge Amy Coney Barrett’s nomination is distinctive. She is a wife of 21 years, and a mother of seven (including a special needs child and two adopted children). That is a separator in and of itself.
She is a Midwesterner but grew up in Louisiana. She is not an Ivy League graduate, as all other Justices are. She graduated from Rhodes College (a respected Tennessee school) and Notre Dame’s Law School.
Her career was not embedded within the Beltway like many of the other justices but is just as impressive.
All of this would lead some, including the undersigned, to conclude she would characterize a segment of our country currently missing, and genuinely needed, on the Court. Some may find it refreshing, to be honest.
Judge Barrett has received near universal praise for her character and legal acumen. She clerked on the D.C. Circuit and then for Justice Scalia, was first in her law school class, Phi Beta Kappa as an undergraduate, practiced law with a prominent private firm, taught at three prestigious law schools and is currently a judge on the Seventh Circuit.
Throughout her career, she has earned the admiration and respect of her colleagues, regardless of their political alignment. While a few risible detractors have attacked Judge Barrett’s adoption of her Haitian children and her participation in a Christian worship community, criticism of the judge and her ability has been muted.
For generations, unpopular policy choices could be inflicted on America via activist courts. Outcomes often became predictable, especially in the trial courts, and even before the circuits once a panel was selected. The combination of outcome-driven judges and an unaccountable administrative state created an alternative to the formal lawmaking process that allowed governance without consequence.
Judge Barrett’s confirmation promises to decisively establish textualism and originalism as the prevailing methods of the Court, a legacy provided by Justice Scalia. These philosophies minimize the role of judges by closely adhering to the words of the Constitution and laws of the United States. Justices use language and history to understand laws as the public understood them at the time of their passage. At the same time, policy decisions are returned to the politically accountable branches except to the extent they run afoul of the Constitution.
In a textualist court, the firm expectation is that judges will wear robes and not capes. They are not there to save us from ourselves, but merely to interpret the laws and ensure the constitutional guardrails appropriately constrain our elected institutions. Good judging is defined by humility, not creativity.
Textualism has long been maligned as a backdoor for conservative policy preferences, but the case law has put the lie to that worn-out take.
In the recent Bostock case, for example, both the majority and the dissenters employed the methodology of textualism.
Justice Gorsuch’s approach, which prevailed, led to a dramatic expansion of LGBT employment rights. And in a broad swathe of constitutional cases involving searches, seizures, due process, and jury rights, originalism has consistently driven the court to reverse convictions and limit criminal justice enforcement.
Textualism and originalism do not guarantee a particular outcome, but they do minimize the opportunity for a judge’s personal preferences to steer the law.
This reversion to the constitutional norm — setting each branch back in its proper role — allows for democratically-accountable policymaking.
Let Congress become again the great deliberative body it once was. A robust and functional Congress, driven to compromise and cooperate to get things done, is much healthier for America than a constant stream of all-or-nothing litigation over every major piece of legislation.
Fear of a Justice Barrett has driven formerly sensible elected officials to embrace radical structural changes like court-packing and elimination of the Senate filibuster. Court packing was a bridge too far for America even at the height of Franklin Delano Roosevelt’s powers, and for good reason — it is inherently destabilizing and triggers a vicious cycle of retaliation.
Whatever the short-term political disagreements, they do not merit court packing. That approach will undermine the legitimacy of the judicial branch.
Judge Barrett is a woman of exceptional character, intellect, and temperament. Her jurisprudence will minimize the role of the courts and give the elected branches room to work. Judicial humility and restraint are the only avenues out of the rapidly escalating judicial wars. Justice Barrett would deliver that humility and restraint and restore our political process. Let’s give her the opportunity.
— THE NASHVILLE TENNESSEAN