Amy Coney Barrett and the Constitution

President Trump’s pick to fill the vacancy on the Supreme Court, Judge Amy Coney Barrett, has been praised for her fidelity to the Constitution and respect for the rule of law. 

She has criticized strict adherence to the legal doctrine of stare decisis and indicated she would rather follow the Constitution instead of Court-made doctrine.  She does not view prior Court precedents as always binding.  She has argued the doctrine should only be a “weak presumption” and judges should have more flexibility in constitutional cases.   She has endorsed the view that “a justice’s duty is to the Constitution” and it is legitimate for judges to decide according to their best understanding of the Constitution rather than blindly follow precedent.  She rejects the notion that any court “can declare a permanent victor in a divisive constitutional struggle.”  This has the Left going nuts because it suggests she might vote to overturn Roe v. Wade if confirmed.

She favors textualism which holds that courts cannot go against the plain language of a statute to effectuate legislative intent or fix a poorly written law.  She wrote in 2017, “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.”  This has the Left going nuts because she has specifically called out  Chief Justice John Roberts for reaching out and saving the Obamacare statute with his cockamamie ‘it isn’t a tax, it is a tax’ gyrations.

You won’t hear her talking about a ‘living, breathing Constitution’ any time soon.  She appears to be an originalist, of the variety that gives the words in the Constitution their original public meaning.  Also, she has argued judges have a limited role to play in our system of government and should stay in their lane.  In 2016, she wrote that, “People should not look to the Supreme Court as a super Legislature. They should look at the Court as an institution that interprets our laws and protects the rule of law, but doesn’t try to impose policy preferences – that’s the job of Congress and the president.”

Her critics fear she will follow the dictates of her Catholic faith instead of the law on issues like abortion.  However, regarding the death penalty, she wrote:  “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” They should, however, recuse themselves from a case if their personal convictions keep them from doing their job.   “I would never impose my own personal convictions upon the law,” she testified.

As for her judicial record, she has joined opinions allowing the death penalty to go forward in a couple of cases.  She dissented in a Second Amendment case where the majority upheld a lifetime ban on firearm possession by a nonviolent felon, arguing the result was unconstitutional because there was no evidence the felon was a hi-risk individual.  In an abortion case, she joined a dissent which argued Supreme Court precedents do not apply in the case of sex selection abortions.  The dissent she joined emphasized not taking precedents beyond the facts at hand.  That opinion argued, “We ought not impute to the Justices decisions they have not made about problems they have not faced.”  She wrote the opinion in a case invalidating the university suspension of a male student who was found guilty of sexual violence.  The school did not afford enough Due Process to the student, starting with the fact it refused to disclose the evidence upon which it based its decision.  That was enough, in Barrett’s view, to render the process fundamentally unfair. 

Maybe I’ve lived too long, but Jeff Sessions said a lot of nice things about the rule of law in his confirmation process and was a disaster as Attorney General.  More recently, Justice Gorsuch - praised by conservatives and appointed to the high Court by President Trump - expanded transgender rights in an opinion every bit as cockamamie as Roberts’ Obamacare opinion.  Much has been written about Justice Harry Blackmun, a Nixon appointee, disappointing conservatives.  I’ve mentioned before that the Supreme Court has become too powerful in ways the Founders never intended.  While having Amy Coney Barrett on the Supreme Court would be far preferable than, say, a Hillary Clinton, let’s just hope that Barrett doesn’t succumb to Potomac Fever when she gets to Washington from Indiana.