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above: Amy Coney Barrett in 2018 (Rachel Malehorn/Wikimedia Commons)

Editorials

Considering Judge Barrett

In one of the most important acts of his Presidency, on Sept. 26, 2020, Donald J. Trump announced his pick to fill the United States Supreme Court vacancy created by the death of Ruth Bader Ginsburg: Amy Coney Barrett.  

The Supreme Court has recently been divided 4-4 in terms of judicial philosophy, with Justices Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan displaying the now familiar liberal jurisprudence associated with the view that the Constitution is a “living document,” changing in meaning to fit the needs of the times.

Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh have somewhat less regularly, but still discernably, hewed to the conservative notions that the Constitution and federal law ought to be interpreted in accordance with the understanding at the time the measures were passed, a perspective now known as “originalism” or “textualism.”

Chief Justice John Roberts has come to be the tie-breaker or “swing” justice, moving between the conservative or liberal camps in a manner that looks capricious, but that is probably explained by the fact that he seeks to keep the Court out of politics to whatever extent possible, and to reduce the likelihood that it will be seen as just another arbitrary engine of the federal bureaucracy.

Barrett, who clerked for the late Justice Antonin Scalia, the most celebrated proponent of originalism and textualism, confirmed at the announcement of her nomination that she is an adherent of Scalia’s judicial philosophy. Adding her to the Court is widely believed to be an opportunity to shift it in a conservative direction for the next generation.

Over the last 60 years, the Court has tended to move away from core conservative principles, as Republican appointees have repeatedly shifted to the left. Thus, it has established such judicial landmarks as the decisions mandating racial integration in public schools, banning Bible reading and prayers in those same schools, dictating an end to single-sex state-sponsored military academies, establishing out of whole cloth a constitutional right to abortion, forbidding prosecutions for adult homosexual sodomy, and, most recently, ruling that states and localities may not prohibit single-sex marriage.

From the perspective constructed by Scalia, all of this was blatant judicial usurpation. The Constitution, as originally written, said nothing about these issues, leaving decisions on these matters to the state and local governments—those governing bodies closest to the people. While many, if not most, of the Framers contemplated that the Supreme Court would exercise review of state and federal legislation and reject unconstitutional measures, the consensus was that this was a modest undertaking, and should only be exercised consistently with the will of the people in establishing the Constitution itself.

Because the Court, for years, has enabled Democrats to accomplish the radical agenda they have been unable to get through the Congress or the state legislatures by having that agenda mandated by the federal courts, they have understandably been aroused to a fever pitch by the prospect that a Barrett appointment might put all this at risk.

Speaking, perhaps, for the Satanic wing of the Democrats, HBO’s talk show host Bill Maher, referring to nominee Barrett’s deeply religious lifestyle, declared “she’s a f---ing nut.” He added that she is:

Catholic—really Catholic. I mean really, really Catholic—like speaking in tongues. Like she doesn’t believe in condoms, which is what she has in common with Trump, because he doesn’t either. I remember that from Stormy Daniels.

Barrett is a member of a charismatic Christian group called People of Praise, which was wrongly reported to have been the inspiration for Margaret Atwood’s dystopian novel of a future American theocracy, The Handmaid’s Tale (1985). The reality, revealed by People of Praise’s website, is that the group is devoted to laudable charitable and educational works.

Maher’s evidence that Barrett does not favor contraception appears to be that she has five biological children with her husband. She also has two adopted children from Haiti. She would be the first Supreme Court justice with school-age children, and at 48 years old, is likely to be a justice for three decades or more.

Barrett was an outstanding law student at Notre Dame, and even Noah Feldman, a Harvard Law professor who clerked for a different justice when Barrett was working for Scalia, and who testified for the Democrats in the impeachment effort against President Trump, conceded that “Barrett is highly qualified to serve on the Supreme Court.”

In his article at Bloomberg News, “Amy Coney Barrett Deserves to Be on the Supreme Court,” Feldman went further: “Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the Court, Barrett stood out.”

In stark contrast to Maher, Feldman concluded that even though he expected to disagree with many of the decisions Barrett might render, “Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind—including in the heat of real disagreement about important subjects. She will be an ideal colleague.”

There is no doubt that religion is a powerful force in Barrett’s life. Clear evidence was given in a speech she gave to law students at Notre Dame, where she taught before becoming a judge on the United States Court of Appeals for the 7th Circuit, and where she still teaches. She told the fledgling lawyers that they should remember that a “legal career is but a means to an end…and that end is building the Kingdom of God.”

That view terrifies Maher, but, of course, as Yoram Hazony, President of the Herzl Institute in Jerusalem recently tweeted, “all believing Jews and Christians think that our purpose is to build the kingdom of God.” The millions of Americans who regularly recite the Lord’s Prayer would agree with Hazony.

Nothing galled Scalia, a man of deep Catholic faith (like Barrett), so much as the Court’s turn in the 1960s away from promoting religion in the public square. A series of decisions, straying from the original understanding, actually held that the state and federal governments had to remain neutral on religion itself, neither promoting nor condemning it. This was in stark contrast to the view of many of the Framers, including George Washington, Alexander Hamilton, John Adams, and even Thomas Jefferson, who frequently remarked that we were a religious people, and, indeed, that our Constitution was framed with that in mind.

Supreme Court Justice Samuel Chase once told a grand jury that there could be no order without law, no law without morality, and no morality without religion, and Justice Joseph Story wrote in his great Commentaries on the Constitution of the United States (1833) that it was the government’s task to actively promote Christianity.

Some Democrats, like Maher, may find that terrifying, but Scalia did not, and Barrett may aid in returning us to a more sensible view. As this is written, there are predictions that Barrett’s confirmation will be an all-but-apocalyptic battle, not only because the place of religion in the public square is controversial, but also because two key achievements of the progressives are said to be at stake: the constitutionality of abortion, and the survival of the Patient Protection and Affordable Care Act, known as “Obamacare.”

It is highly unlikely, given the preferences of the chief justice, and the essentially deferential perspectives of Justices Kavanaugh and Gorsuch, that Roe v. Wade, the now 47-year-old precedent that established the purported constitutional right to terminate a pregnancy, would actually be reversed.

It is likely, however, that with a Justice Barrett the Court would be more likely to permit increased state restrictions on abortion, and, in particular, regulations designed to offer women alternatives to abortion and, where it occurs, to promote the safety of the practice. This is likely to happen, however, with or without a Justice Barrett, and with the increased availability of the “morning-after” pill, it is also likely that abortion may become less of a divisive issue, and eventually Roe v. Wade may fade into the obscurity it deserves.

Of more lasting significance will be what the Court does next term with a case before it that challenges the constitutionality of Obamacare. The Court ruled in NFIB v. Sebelius (2011) that the Affordable Care Act exceeded Congress’s power to regulate commerce. By mandating that all Americans purchase health care insurance, the Court explained, Congress was creating commerce and not regulating it. Obamacare was still upheld, however, by Justice Roberts’ judicial legerdemain in claiming that it was a legitimate exercise of Congress’s apparently unlimited power to tax. 

The “tax,” a penalty for failure to purchase insurance, has since been repealed, which now ought to result in a determination that Obamacare, which virtually turned over the sixth of our economy devoted to health care to the federal government, must fall.

Democrats have used this likely eventuality to terrify Americans that the provision in Obamacare guaranteeing that insurance would be available to cover those with preexisting medical conditions would evaporate with the Affordable Care Act. Still, Republicans have pledged they will prevent that from happening. And, even if the matter of regulating healthcare is returned to the states, where it properly belongs, there is no real reason to think that we cannot do a better job with the provision of health insurance than we do now.

Another Democrat argument raised against the Barrett confirmation was the fact that a Republican Senate, led by Mitch McConnell, had refused even to hold hearings on a nominee, Merrick Garland, in the last year of Barack Obama’s presidency, depriving Obama of a Court-shaping legacy. It was, according to Democrats, blatant hypocrisy for Republicans to seek to confirm a justice in the last months of a Trump Presidency.

No one doubted, of course, that if it were the Democrats in control of both the presidency and the Senate, they wouldn’t hesitate in confirming a justice of their choice in similar circumstances. And throughout American history there are myriad instances of justices being appointed in the last years of presidential terms.

The most blatant such move, frequently invoked as support for the Barrett pick, was that of the great Chief Justice John Marshall himself. Now almost universally venerated, Marshall was nominated and confirmed not only in the last year of the John Adams presidency, but after Adams had lost the 1800 election to Thomas Jefferson.

There is delicious irony in the comparison of Barrett to Marshall. Marshall was the justice who, early in the nation’s history, did the most to inject the federal government, through judicial review, into the restriction of state sovereignty, and to broaden Congress’s ability to promote ambitious regulatory schemes.  

The most pressing task before the Court at this point in our history is to tame the federal leviathan and to reduce the ability of federal agencies to control every aspect of national life. If a Justice Barrett is confirmed and provides the fifth vote to overturn Obamacare, and, eventually to reduce the power of the administrative state, her appointment will be the greatest of President Trump’s accomplishments.

Appointments to the Court by Republican presidents have often disappointed them, as those justices succumbed to media pressures to hew to the “living Constitution” line.  The Psalmist warned us not to put our faith in princes, and that admonition should apply to justices as well. Nevertheless, Psalm 146 reminds that faith in the Deity remains our best hope, and there is reason to believe that this angelic-looking and deeply faithful, good woman will be one of our greatest jurists.

Stephen B. Presser

Stephen B. Presser

Stephen B. Presser is the legal affairs editor for Chronicles magazine. He is the Raoul Berger Professor of Law Emeritus at Northwestern University's Pritzker School of Law, and Professor of Business Law Emeritus at the Kellogg School of Management. He is a leading American legal historian and expert on shareholder liability for corporate debts.

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J.D. King
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Excellent. Fingers crossed. Prayers said for Amy.
 
 

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Eustachius Hubert
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The morning after pill aborts the child http://www.vatican.va/roman_curia/pontifical_academies/acdlife/documents/rc_pa_acdlife_doc_20001031_pillola-giorno-dopo_en.html
 
 

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