Amy Coney Barrett has released her opening statement to the Senate Judiciary Committee, which will begin hearings tomorrow on her nomination to the Supreme Court. The two most important paragraphs, in my opinion, are the following (emphasis mine):
I also clerked for Justice Scalia, and like many law students, I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions. More than the style of his writing, though, it was the content of Justice Scalia's reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best-known opinions, that is what it means to say we have a government of laws, not of men.
and
Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.
As I have written in other posts, I fully agree with this position. Policy ought to be the exclusive providence of elected representatives. If the law is incorrect, Congress should repair or repeal it – it is not the providence of unelected judges to “revise” or “re-interpret” or “repair” laws to fit their own ideological leanings. The fact that Congress is sometimes slow to act, or thoroughly dysfunctional, as it is right now, does not in any way change this.
And in fact that might indeed mean that someday Roe vs Wade might get overturned. Even Justice Ginsberg, a staunch liberal who was a strong supporter of abortion rights, agreed in public that the Constitutional basis on which it was decided (the “right to privacy” imputed to the due process clause in the fourteenth amendment, even though “right to privacy” is not mentioned at all in the amendment) was highly questionable.
For those who are interested, the actual wording of that clause is:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As you can see, it is a pretty big stretch from that wording to some Constitutional “right to privacy”, and then another big stretch to get from “right to privacy” to Roe vs Wade. This is a case where I agree with Justice Ginsberg on the outcome but think the Constitutional basis for the ruling was pretty thin.
I actually don’t think it is very likely that the Court will overturn this ruling, even if Barrett joins the Court, but if it does, it will be because the Constitution, as written including amendments, provides no legal basis for this ruling, nor are there any federal laws passed by Congress that support it. There ought to be. I support abortion rights, and think the imposition of an abortion ban is an illegal imposition by federal law of a religious belief, which is explicitly forbidden by the Establishment Clause of the First amendment to the Constitution, and ought to be the real Constitutional basis for a Roe vs Wade-type ruling.
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