Barrett's theology may be out of bounds, but not her judicial philosophy | National Catholic Reporter

Barrett's theology may be out of bounds, but not her judicial philosophy | National Catholic Reporter
by Michael Sean Winters
***My objection to confirming Barrett remains her judicial philosophy, specifically her commitment to textualism, a kissin' cousin of the originalism espoused by her hero Justice Antonin Scalia, for whom she clerked. She defined textualism in a 2010 Boston University Law Review article:

The defining tenet of textualism is the belief that it is impossible to know whether Congress would have drafted the statute differently if it had anticipated the situation before the court. The legislative process is path-dependent and riddled with compromise. A statute's language may be at odds with its broad purpose because proponents accept less than they want in order to secure the bill's passage. The language may appear awkward because competing factions agree "to split the difference between competing principles." To respect the deals that are inevitably struck along the way, the outcome of this complex process — the statutory text — must control. A judge who reshapes statutory language to alleviate its awkwardness risks undoing the very bargains that made the statute's passage possible.

The problem with textualism, then, is not that it holds that the text is essentially self-interpreting, that the meaning of the words is fixed, even though the meanings of words are never fixed. The deeper problem is that textualists present their theory in such simplistic ways for popular consumption — who wants a judge who undermines the text of the Constitution? — but in fact the reasonings they apply are just as complicated and open to personal adjustment as those deployed by the court's liberals.