In her opening statement before the Senate Judiciary Committee, Amy Coney Barrett laid out a strong vision of the Supreme Court as the government’s uniquely apolitical branch. That vision has earned her the approval of political conservatives and a nomination to the high court.
“Courts are not designed to solve every problem or right every wrong in our public life,” Barrett said at her confirmation hearing on Monday. “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.”
Yet so many look to the Supreme Court as a built-in bypass to the notably difficult acts of legislating and governing. In many ways, it has become just that — a bypass. Combating that innovation of the court’s function motivates political conservatives to support judges like Barrett, who pledges to rule with regard to the original public meaning of the Constitution rather than its penumbras and with regard to the text of laws rather than their spirit.
In a 2017 book review — the same one in which she criticizes Chief Justice John Roberts for his logic creatively deeming Obamacare’s individual mandate penalty a tax, which Democrats use as the basis of their presumption that Barrett would vote to rule the act as unconstitutional — Barrett writes with greater detail of her standing philosophy, not only about the Supreme Court’s function but about the entire constitutional order:
Barrett respects the reality that direct democracy advocates, who fill the ranks of the media and the Democratic Party, do not: Basic majority rule is disposed to the trampling of rights. Courts serve as one of the checks on that outcome.
Monday’s hearing did not deal with these details. In the coming days, Democrats will prompt her to justify her criticism of Roberts on Obamacare and her positions on Roe v. Wade and the stare decisis doctrine. Whatever her answers, her vision of the Supreme Court as an institution with a targeted and necessarily limited role will be their basis.
