Judge Barrett Herself Explained Why "The Law As Written" Often Merges With Her "Preferences"

 by Michael C. Dorf

One current and two deceased jurists loom large over the Senate Judiciary Committee hearing regarding Judge Amy Coney Barrett's nomination to the Supreme Court. The living one is Judge Merrick Garland. GOP Senators' rush to confirm Barrett after their refusal to hold hearings for Garland display their hypocrisy--as do the self-serving and post-hoc justifications they have offered for a naked power grab by a party eager to capitalize on the least democratic features of our political system.

To be sure, Lindsey Graham opened the hearing on Monday with the declaration that "there's nothing unconstitutional about" what he and his fellow Republicans are doing. That's true but beside the point. There was nothing unconstitutional (or even illegal) about Graham becoming Donald Trump's boot-licking caddy after calling him a "race-baiting, xenophobic, religious bigot" and a "jackass." There would be nothing unconstitutional if one of Graham's colleagues were to take to the Senate floor and falsely claim that Graham is a Satanist who each night goes out disguised as a nurse to deliberately spread COVID-19 in local hospitals. Indeed, such a false statement could not even be made the basis for a defamation suit by Graham because it would be protected by the Speech & Debate Clause of the Constitution's Article I, Section 6.

No one seriously claimed that the Barrett confirmation process is unconstitutional or illegal. We Democrats have said it is an exercise in norm-busting hypocrisy. That's why I argued that Senate Democrats should not even engage with the merits of Barrett's nomination. Democratic Senators have focused substantial attention on Republican hypocrisy but they have not otherwise heeded my advice--which is fine, of course. I'm a constitutional law scholar, not a political strategist, and presumably the Senators have received advice from people who are more experienced than I am at projecting how their approach will play.

What is that approach? Thus far, Democratic Senators have been using the hearing as an opportunity to point to the ways in which Barrett poses an immediate threat--for example, she could cast a decisive vote to invalidate the Affordable Care Act--as well as a long-term one--for example, she could cast a decisive vote to rescind the constitutional right to abortion. Those are important concrete points, but there is a larger one that, in a world with an attention span longer than a sound bite, would ideally receive some attention.

A fruitful line of criticism would point to the two deceased jurists whose names have been most frequently invoked in the last few weeks: Antonin Scalia--Barrett's mentor and role model--and Ruth Bader Ginsburg--whose seat Barrett would fill and whose legacy she says she honors. Scalia and Ginsburg were famously friends who enjoyed each other's company at the opera and elsewhere. But they espoused very different judicial philosophies.

It would not be fair to tar Barrett with every one of Scalia's intemperate statements in the U.S. Reports--like his comparison of homosexuality to bestiality in his Lawrence v. Texas dissent or his resistance (in his Romer v. Evans dissent) to the idea that LGBTQ+ Americans face discrimination because, in his view, they control the media. When Judge Barrett identifies Justice Scalia as her role model, she endorses originalism in constitutional interpretation and textualism in statutory interpretation, not every application of that philosophy by Scalia, much less every one of his fits of pique.

Even so limited, the endorsement is problematic for how Judge Barrett is selling her jurisprudential philosophy, because originalism and textualism are very substantially under-determinate in the controversial cases that the Supreme Court decides. Prof Segall made that point (about originalism) here on the blog on Monday. Prof Buchanan and I make the point (about both originalism and textualism) at length in our forthcoming Cornell Law Review article. But we three are liberal critics of originalism and textualism. What about conservative scholars and judges?

Well, how about the fact that Judge Barrett herself has acknowledged the substantial under-determinacy of originalism? At last year's Federalist Society national convention, I was on a panel with Judge Barrett (and others). Our topic was "Why, or Why Not, Be an Originalist?" During my presentation, I explained that "old" originalism, which purported to find guidance in the subjective intentions and expectations of the framers, had many vices but was at least somewhat determinate in some cases; by contrast, the "new" originalism, which focuses on the original public meaning of the Constitution's text, is indistinguishable from living Constitutionalism. Therefore, I argued that so long as we're talking about "new" originalism (which is now the dominant form and is the form Judge Barrett purports to practice), it doesn't matter whether a judge is an originalist--except that the term is used as a means of fooling the public into thinking that the judge is more bound by external sources than she claims. Here is what Judge Barrett said (at 1:15:29-1:16:08 of the recording) in response to me: 

Part of the thrust of Professor Dorf's objection is that originalism can't yield determinate answers, and as I said before, I don't think that's kind of what's on offer, but that's true of all constitutional theories, right? There's always going to be disagreement about what the Constitution requires, no matter what interpretive standpoint you are approaching the document from. So I don't think that's a fatal flaw in originalism. I think that's just the reality on the ground--you know, that constitutional law, especially in the set of cases that make it to the Supreme Court, involves indeterminacy and some disagreement.

Let's note that answer carefully. Judge Barrett says that she is not defending originalism as determinate (not "what's on offer"). She then says that originalism isn't more indeterminate than other constitutional methodologies. Notably she does not say that it's more determinate.

Now take a moment to reflect on what Judge Barrett has been saying since she was nominated to the Supreme Court. In her opening statement on Monday she said: "A judge must apply the law as written, not as the judge wishes it were." She then repeated that sentiment, stating that as an appeals court judge, she has done her "utmost to reach the result required by the law, whatever [her] own preferences might be."

What exactly does that mean when, as Judge Barrett said during our panel (at around the 1:05 mark), the level of generality of the original meaning is too abstract to provide concrete guidance? Two justices can disagree over whether the Second Amendment protects a right to carry semi-automatic weapons in public. They can disagree over whether race-based affirmative action denies equal protection. They can disagree over whether the First Amendment protects a right to make unlimited campaign expenditures. Etc. Because of the generality of the text and its original meaning, both justices are applying the law as written. Accordingly, a promise by an originalist to apply the law as written does not preclude resort to that judge's preferences. The under-determinacy that Judge Barrett acknowledges in the Constitution as construed by every method of interpretation, including the one she favors, invites recourse to her own preferences.

Now, to be clear, I do not mean to be suggesting that Judge Barrett is more likely than any other judge or justice to see what she wants to see in the Constitution (or statutes). She isn't. But neither is she less likely. The contrast she draws between the law as written and her preferences is bogus--and for reasons she herself has acknowledged.

If, based on what we know about her record and values, you think you're going to like Justice Barrett's preferences, you can support her confirmation so long as you're untroubled by the rank hypocrisy of filling this seat under these circumstances. But if you fear that Judge Barrett's preferences will move the law in the wrong direction, then even apart from the procedural objections, she has given you all the reason you need to oppose her confirmation.