Amy Coney Barrett is now Justice Barrett. With that, today is an occasion to break down the intellectually dishonest and malicious caricatures of her judicial philosophy, which Democrats used all the way to the end of their futile fight against her confirmation.
Here is how Barrett described her philosophy during her hearings: “We use originalism mostly to refer to interpreting the constitutional text. And textualism we use to refer to interpreting statutory text, but they both involve the same principle, which is that one comes to the law and interprets it as it would have been understood by those at the time of its — either its ratification, in the case of the constitution, or its enactment in the case of a statute, and that the law remains the law until it’s lawfully changed through democratic processes.”
Democrats despise these methods because they rein in federal power, which they are constantly working to expand. In 2012, the Supreme Court was one vote short of vacating the Affordable Care Act statute on the grounds that Congress does not have the constitutional power to coerce commerce, as the individual mandate did. Originalist rulings have been protective of the Second Amendment and, just this term, have overruled lower court actions changing voting rules.
These challenge the Democratic agenda, so it’s natural that the party would not support an originalist judge. What isn’t natural is how Barrett’s opponents have spun originalism to make it something it isn’t. We could be charitable and suggest they don’t understand it, but they are too cunning for such charity.
If something belongs to any of the -ist categories, it is measurably easier to oppose. That’s why Democratic Sen. Ed Markey opposed Barrett during his speech Monday by saying, “Originalism is racist, originalism is sexist, originalism is homophobic. For originalists like Judge Barrett, LGBT means ‘let’s go back in time.'”
Democrats relied on similarly intellectually dishonest assessments during Barrett’s confirmation hearings. California Rep. Jackie Speier said, “Under an originalist reading of the Constitution Judge Barrett & I could not vote, own property or enjoy the full protection of the law.” Her colleague from California, Rep. Barbara Lee, said, “An ‘originalist’ reading of the Constitution would disqualify Judge Barrett, or any woman, from serving on the Supreme Court or from owning property or voting.”
Remember that the Constitution has an amendment — the nation just celebrated its centennial — that explicitly enfranchised women. It also has an amendment guaranteeing equal protection of the law to all people. It’s fallacious to judge originalism as if it simply has no time for the Constitution’s amendments and other judicial developments. There is no serious originalist reading that would disenfranchise women from voting or owning property. There is certainly no prominent originalist making a case for those things.
Because Barrett and other originalists interpret the Constitution “as it would have been understood by those at the time of its … ratification,” opponents cry anachronism, suggesting that such an approach requires the judge to play judicial dress-up and to reimpose the circumstances of previous eras. Originalism seeks to do no such thing.
The charges of racism operate on that assumption. It’s wrong, and there are strong originalist and textualist arguments opposing previous court rulings which allowed racial discrimination and might be perceived to have done so on originalist grounds. Plessy v. Ferguson ruled that “separate but equal” is constitutional, and Brown v. Board’s ruling vacated separate but equal. Barrett’s former boss, the late Justice Antonin Scalia, was perhaps the foremost originalist ever to sit on the court. In 2009, he affirmed Brown saying, “The Constitution says what it says. No person shall be denied the equal protection of the law, and to grant some people entry into educational institutions because of the color of their skin and deny it to others because of the color of their skin … it violates the provision of the Constitution.”
Senate Majority Leader Mitch McConnell made a compelling point in the final speech right before Monday’s vote. “The louder they scream,” he said of Democrats and other furious Barrett opponents, “the more inaccurate they are.”
All the sound and fury about originalism render that judgment true.
