Some lessons from Judge Barrett’s confirmation hearing

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During her confirmation hearing, like most nominees to the Supreme Court since 1987, Judge Amy Coney Barrett declined to set forth her views on healthcare, abortion, gun safety, and other hot-button issues. The year 1987 is crucial. In a column I prepared for the Baltimore Sun at the time, I urged the Senate to reject Judge Robert Bork’s nomination to the Supreme Court “for the right reasons”: His judicial philosophy of originalism was far beyond mainstream jurisprudence.

While my column had no impact, the Senate declined to confirm his nomination by a vote of 42 to 58. Bork’s detailed answers revealed not only his judicial philosophy, which at the time was called “a jurisprudence of original intention,” but his opposition to the 1965 Griswold decision, establishing the right to privacy, and the 1964 Civil Rights Act, which prohibited racial discrimination in places of public accommodations (he called it a principle of “unsurpassed ugliness”). Since then, nominees have declined to provide detailed answers to any questions during the confirmation process.

Originalism requires judges to view the provisions of the Constitution through the eyes of those who drafted and ratified them. It gained currency in 1985, when then-Attorney General Edwin Meese endorsed it. The idea was not new. Chief Justice Roger Brooke Taney used it in his infamous 1857 Dred Scott decision, denying Blacks the right of citizenship. The approach developed from an earlier idea known as textualism or literalism: The words in the document are the only thing that matters.

As a textualist, Justice Hugo Black noted in his Griswold dissent that “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” This is precisely why Barrett declined to endorse Griswold: the word privacy appears nowhere in the text. 

The difference between 1987 and today is that originalism is now mainstream. Today, all justices look to the history of how the framers of each provision understood what they were doing. Barrett’s mentor, Justice Antonin Scalia, and current Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, were or are originalists. But so-called liberal justices, like the late Ruth Bader Ginsburg and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, write opinions full of historical references. During her 2010 confirmation hearing, Kagan remarked that now “we are all originalists,” at least to an extent.

Before Scalia joined the court, just months before Bork’s nomination, the prevailing approach to constitutional interpretation rejected a narrow reading of the document. The doctrine of “the living Constitution” is rooted in the ideas of law professor Karl Llewellyn, an early 20th century scholar at Columbia. His “school of legal realism” states that a judge’s duty is to shape the law to comport with existing social and political conditions.

Because of this doctrine, the court has upheld Social Security, minimum-wage and maximum-hour laws, privacy and abortion rights, outlawing of racial discrimination in public accommodations, the Miranda warning, same-sex marriage, and many other factors. None of these may be found in the document.

While Barrett endorsed the Brown desegregation and interracial-marriage decisions, she declined to accept privacy as a constitutionally protected right. She generally supports precedent, known in Latin as stare decisis (“let the decision stand”). Yet, she indicated that it is not an inexorable principle. The court may at times find that earlier justices incorrectly decided a case. As she pointed out, Brown (1954) overruled the separate but equal principle established in Plessy v. Ferguson (1896), and a 2003 decision overruled a 1986 decision allowing states to criminalize intimate relations between same-sex adults.

On another matter, justices will at times engage in statutory interpretation, which does not establish precedent, as does constitutional interpretation. The first challenge to the Affordable Care Act involved its constitutionality, and the court in 2012 held 5 to 4 that the law was constitutional because Congress possessed taxing power.

The second case focused on statutory interpretation. The law empowered states to erect market exchanges for residents to purchase health insurance. If a state declined to do so, the federal government could create one in the state. The question before the court regarded tax credits available to low-income people who purchased health insurance through these exchanges. The law stated that individuals were eligible for tax credits when they obtained their insurance from an exchange “established by the state.”

These four words were at issue: Were those who had health insurance through a federal exchange eligible for the same credits as those who did so through a state exchange? The court had two ways to review the question. Stephen Breyer argued that the court must investigate the legislative record to determine Congress’s goal.

But Antonin Scalia contended that all justices need do is to look at the words: “Established by the state” means that the credits were available only when people obtained health insurance through their state exchanges. He lost in a 6-3 vote. Writing for the court, Roberts argued that the role of the court is to look at the entire law. Here, Congress tried to preserve, not destroy, health care: When read in context of the entire law, the word “exchanges” referred to any exchange that government, state or federal, established.

Barrett follows the Scalia, not the Breyer, approach. Look to the words in the text, she asserted, nothing more. This follows the general originalist principle that meaning is embedded in only the words.

Judge Barrett will undoubtedly be confirmed; as Senate Judiciary Committee chairman Lindsey Graham stated in opening the committee hearing, “All the Republicans will vote yes, all the Democrats will vote no.” And the Republicans hold the majority.

 

Jack Fruchtman, an Aquinnah resident who taught constitutional law and politics for over 40 years, is the author of “American Constitutional History.”