Democrats are making much of the fact that Supreme Court nominee Amy Coney Barrett is Catholic, apparently fearing that her Catholic faith will lead her to overturn Roe vs Wade. I guess they don’t know that five of the current Supreme Court justices are Catholic too, as are 30% of the members of Congress. For that matter, their own nominee for president, Joe Biden, is a Catholic. So how come they are worried about Barrett but not about Joe Biden or Justice Roberts or Justice Sotomayor or Justice Alito or Justice Thomas or Justice Kavanaugh? Clearly this is just an attempt, and a feeble one at that, to scare up support among their base.
In fact Barrett is a textualist, as was her mentor Justice Scalia, ruling on what the text of a law says instead of on some “creative expansion” of the text to achieve some ideological end. Textualists believe (and I agree with them) that it is not the job of the unelected judiciary to create legislation; that power is absolutely reserved to elected representatives. It is true that many laws are defective as written, or ambiguous, or no longer applicable in a changing world. The remedy for that is for elected members of the legislature to rewrite the laws, or kill them, or correct them. That is emphatically NOT the job of the judiciary.
Similarly, “originalist” judges refer to the Constitution as their guide. Again, it is not the job of judges to “re-interpret” the Constitution. Yes, the Constitution is a living document, and parts of it get out of date. We have a process that addresses that fact – it is called “Constitutional amendments”, and we have since the writing of the original Constitution passed 27 of them. They are not easy to pass, and they shouldn’t be. It takes the agreement of three-quarters of the states to pass a Constitutional amendment so there has to be broad agreement among the voting public to make such a change. That is healthy. It prevents some temporary majority from forcing their ideological views down the throats of the country.
Congress is currently dysfunctional and incapable of doing their job. Which means that lots of things that ought to be happening are not happening. The remedy for that is to fix Congress, not to try to bypass it through the judiciary. And even when Congress is working well, some things just can’t get enough support to get passed. Again, the solution is not to bypass Congress through the judiciary, but instead to do the hard work of educating people and trying to build support among the voting public for whatever principle one is selling.
I have no idea how Barrett will vote on the cases she will see, nor does anyone else. But she is bright, eminently qualified, and highly-thought-of by her peers. I thought it was telling that every one of the Supreme Court clerks with whom she worked when she was Justice Scalia’s clerk signed a letter supporting her – every one, even though they must span the political spectrum from liberal to conservative.
Posts
