Amy Barrett: A Different Kind of Originalist | Commonweal Magazine

A Different Kind of Originalist | Commonweal Magazine
By Gregory Bassham

If confirmed by the Senate, Judge Amy Coney Barrett will become the sixth conservative justice on the Supreme Court, likely ensuring a solid right-wing majority on the court for many years to come. For that reason, it is imperative that the Senate set aside the partisan passions of the moment and reflect on what Barrett’s nomination might mean for the future of the court and the nation.

In her White House speech accepting President Trump’s nomination, Barrett stated that Justice Antonin Scalia’s “judicial philosophy is mine, too.” A look at her extensive academic scholarship, however, reveals a very different picture.

Barrett served as a law clerk for Scalia, a conservative. Like her mentor, she takes an “originalist” approach to legal interpretation. Originalists claim that written legal texts, including constitutions, must be interpreted according to their original meanings. In this view, the Constitution is not a “living document” that adapts to changing circumstances and evolving values. Its meaning is fixed when it is adopted, and is considered binding law until formally changed or repealed by amendment.

Also like Scalia, Barrett embraces a particular brand of originalism, now fashionable in conservative legal circles, called “public meaning originalism.” According to this view, the meaning of a legal text is not determined by the intentions or purposes of its authors or adopters, but rather by its public “textual” meaning. What matters is the law’s conventional or ordinary meaning in context—how a typical informed reader of the time would have understood it—not the expressed or unexpressed “intent” of those who wrote or enacted the law.

On these basics Scalia and Barrett agree. But they have very different views on the critical issues of judicial restraint and respect for legal precedent.

For Scalia, the central virtue of originalism as a method of interpreting the Constitution is the way it limits judicial policymaking by unelected and tenured judges, thus honoring the basic democratic values of our constitutional tradition. By contrast, Barrett argues that it was a mistake for “early originalists” such as Scalia to stress the importance of judicial restraint. In her view, the original textual meaning of the Constitution is the law, period. Originalist judges have a sworn duty to uphold the law—even if that requires activist rulings, which may be deeply unpopular and invite frequent collisions with Congress and other democratically accountable legislative bodies.

In Barrett’s view, the original textual meaning of the Constitution is the law, period.

One clear example of this activist bent is Barrett’s rejection of the long-standing view that courts, in interpreting statutes, should view themselves as “faithful agents” of the relevant legislative bodies. Since lawmaking powers have been granted to legislatures, not courts, in our constitutional system, judges have been seen as properly playing a subordinate role in furthering and implementing the rule-making prerogatives of legislatures. Barrett once accepted this traditional view, but recently renounced it in a 2017 article “Congressional Insiders and Outsiders.” When interpreting statutes, judges should see themselves as “agents of the people,” not of legislatures, she argued. They can best carry out this populist role by enforcing statutory words in their “plain,” ordinary meanings, even when such meanings were clearly not intended or desired by the lawmakers, and even when such readings lead to apparent absurdities or gross injustices. (Why such absurdities and injustices are thought to be in the interest of “the people” is unexplained.) The upshot is that courts would see themselves not as partners and honest agents of legislative bodies, but as adversarial watchdogs. This is an activist conception of the judicial role, not a subordinate or passive one.

A second (and related) major point of disagreement between Barrett and Scalia is the importance of respecting prior court decisions that are mistaken according to public meaning originalists. KEEP READING