Setup
Since the passing of Ruth Bader Ginsburg and the inevitable nomination of Amy Coney Barrett to replace her I've had a number of thoughts, reactions, and general feelings of dread. A few weeks have passed, and in that time I've seen the usual arguments raised when it comes to liberals' acceptance of conservative justices. Many of these positions simply don't make any sense to me. Real world experience and past history simply persuade me otherwise and I wanted to summarize my thoughts in a blogpost.
Now, I am not a lawyer, but I will try to lay out my understanding of these issues and explain why I think the positions maintained by the right are in bad faith.
Finally, I want to make it absolutely clear that I rather like our common law system. I like the checks and balances, but if we're to have this system we have to maintain precedent and we have to maintain the original policy power of the judiciary. Balls and Strikes:
One of the chief accusations from the right against liberal justices is that of legislating from the bench. It's the notion that the court is there to interpret laws (to call balls and strikes) and never to make policy. Barrett herself said as much in her opening statement:
This sounds straightforward, but the problem is that it's quite simply ahistorical. Our founding fathers absolutely thought the law evolved and did so because we come from a common law system.
Common Law: one of several legal systems
Our American system is a common law system. Sweden, where I currently live, has a civil law system. There are other legal systems as well: religious law, pluralistic systems (hybrid I think), and probably more, but for much of the world the wide is divided between civil and common law systems. In 1787 when our constitution was ratified we were a country that had been ruled by england and english law systems: common law systems. The reigning jurisprudence was one based on precedent and the understanding of often unwritten common laws. Judges presided and ruled on these cases setting a precedent or **policy** if you will in terms of how these decisions should be decided. This was the most natural thing in the world: it was how legal systems as they knew it had always functioned. And when there were laws that covered matters judges were expected to interpret those laws and create precedent or new **policy**. It's this system of precedent or stare decisis that underpins everything from the very beginning and it was a principle legal premise of our founding fathers.
In civil law systems it's a bit different. Here in Sweden a judge cannot rule on a matter lacking explicit language in the law. It's this civil system where judges truly "call balls and strikes." Also of note here is precedent. Precedent plays a much smaller role in civil law systems where judges are encouraged to look for explicit language in the law and interpret accordingly.
So what?
This matters because given the rise of textualism and originalism we're seeing a surge of judges who intend to honor the original intentions and/or the plain reading of the text as written. The problem is that those same people wouldn't have expected this. Their whole understanding was one where legal systems evolved in this matter.
This doesn't mean that all policy should come from the bench. But we should stop pretending like this is anything other than a design feature well understood by the founding fathers. Sometimes precedent creates policy. That's how our legal system works. It's that simple.
Judicial Review
While the right seems very preoccupied with how judges might create whole new policies from the bench there's an equally powerful tool that has just as much influence on policy and that tool is judicial review. Judicial review is a process where the judiciary can invalidate laws, mandates, government actions, and, well, **policies** including those that come from congress that upon review they deem to be unconstitutional. This is "common" to all common law systems, but in the US the principle of Judicial Review comes from the 1803 case of Marbury vs Madison. I'm not going to go too deep into that case, but you can read more about it here. It was that case that decided that the US constitution is actual law. This should be obvious, but I'll point out that 1803 is not 1787. That is, it was not the expressed and original intent.
This is a precedent that's been viable for 217 years, but one which was never originally intended and one not explicitly spelled out in the constitution.
This is very powerful.
It means that if a judge interprets a law to be unconstitutional or as we'll later hear from the originalists *not explicitly referenced by the constitution* or by their originalist/textualist understanding of *the original intent of the constitution or amendment* they can just invalidate it. And poof ... Any rights enabled, protected, or crimes described are gone.
For some reason this very clear act of policy power is never disparaged by right.
This is a precedent that's been viable for 217 years, but one which was never originally intended and one not explicitly spelled out in the constitution.
This is very powerful.
It means that if a judge interprets a law to be unconstitutional or as we'll later hear from the originalists *not explicitly referenced by the constitution* or by their originalist/textualist understanding of *the original intent of the constitution or amendment* they can just invalidate it. And poof ... Any rights enabled, protected, or crimes described are gone.
For some reason this very clear act of policy power is never disparaged by right.
Powers: good, bad, unintended
"The constituion never mentions abortion"
Um, okay. That's true. And?
The puerile argument here is that because it's not explicitly listed in the constitution it's not a right that should be governed by the constitution. But this is a patently ridiculous assertion. Marriage is never listed in the constitution, nor the use of deadly force to defend your home, nor the police (NOTE: there was no concept of police known to our founding fathers at all. There were night watchmen and the like, but the first Police department organized and granted with authority and power we recognize was first instituted in New York City in the 1840s). There's also no explicit declaration of how congress would ever govern on such matters directly. The legislative authority comes from Article 1 section 8. I've included that text here:
Um, okay. That's true. And?
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
That's it.A couple of things worth mentioning directly.- Note the militia parts. And consider the 2nd amendment. And think about the right to self defense. Do we *STILL* think that Scalia's reading of the rendering of the 2nd amendment in DC vs Heller is a fair and originalist interpretation. After all, the bill of rights came afterwards, uses the same language, involved many of the same founding fathers and clearly has different understood bounds here. It's almost as if the originalism and textualism only matters if they get the outcome they want.
Look at the army piece above and how money is appropriated and for how long: 2 years. That's obviously something we're not honoring at all anymore. And, btw, our founding fathers had a deep seated fear of standing armies. Armies were to be raised when needed and disbanded when that need had passed.
Some things clearly change over time. And that's actually a good thing.
Note the commerce clause (the 3rd one). It's that clause that gives congress all it's real power. This was not a power originally intended or understood by our founders. Following the civil war this clause was used to empower congress to become the law creating and legislative body we think of them today. This interpretation was upheld by the Supreme Court (it's that judicial review bit from above. They reviewed, interpreted and confirmed these powers and others according to their charge of the law).
These are powers we fundamentally take for granted now.
Finally, all these policies that we seem to think should be coming from Congress aren't supposed to come from congress anyway. That we take this for granted now is because of precedent which is itself a policy decision made by SCOTUS. None of those enumerated powers indicate any kind of direct way that congress can decide on any hot-button issue
Our whole body of over 200 years of JurisPrudence is predicated on this idea that we take these first principles and apply them as best as possible. It's what common law systems do and it's even what Barret herself said during her hearing when asked about the 4th amendment.
Look at the army piece above and how money is appropriated and for how long: 2 years. That's obviously something we're not honoring at all anymore. And, btw, our founding fathers had a deep seated fear of standing armies. Armies were to be raised when needed and disbanded when that need had passed.
Some things clearly change over time. And that's actually a good thing.
Note the commerce clause (the 3rd one). It's that clause that gives congress all it's real power. This was not a power originally intended or understood by our founders. Following the civil war this clause was used to empower congress to become the law creating and legislative body we think of them today. This interpretation was upheld by the Supreme Court (it's that judicial review bit from above. They reviewed, interpreted and confirmed these powers and others according to their charge of the law).
These are powers we fundamentally take for granted now.
Finally, all these policies that we seem to think should be coming from Congress aren't supposed to come from congress anyway. That we take this for granted now is because of precedent which is itself a policy decision made by SCOTUS. None of those enumerated powers indicate any kind of direct way that congress can decide on any hot-button issue
Applying the powers
Now let's talk about some rights, powers, and defense of those rights. For all of the hubbub around right wing justices not wanting to create policy from the bench they seem to make a whole lot of policy changing decisions from that hallowed pulpit. To illustrate this point I've chosen two well known cases (one of them includes the court's decision to not hear a case on gerrymandering as well) because these effectively created brand new policy with wide implications.
Obviously there are cases that show liberal justices effectively doing the same but for cases with which I fundamentally and ideologically agree. The essential difference here being that I'm not denying this happens. It's a regular and expected part of our system of government.
So, just two examples to make the point.
Obviously there are cases that show liberal justices effectively doing the same but for cases with which I fundamentally and ideologically agree. The essential difference here being that I'm not denying this happens. It's a regular and expected part of our system of government.
So, just two examples to make the point.
The Voting Rights Act and partisan gerrymandering
In 2013 the Supreme Court ruled that Section 4(b) was unconstitutional because 40 year old data is old. This strikes me as odd coming from originalists who seem to have no issues at all with relying on their own assumptions and interpretation of what the founding fathers meant when they wrote and opined on matters in their own time. Also, while originalists like Barrett will point out that the 4th amendment needs to be interpreted and applied to modern cases, like all originalists they're perfectly happy to completely ignore that notion in cases like this one.
Furthermore, SCOTUS chose not to rule in partisan gerrymandering cases concluding that those are political issues beyond the scope of the court.
So lets review. Disassembling the legislation and protections accorded by the Voting Rights Act is absolutely part of the purview of the court, but deciding on partisan gerrymandering isn't. Oh, and for the former they actively overturned existing law.
Furthermore, SCOTUS chose not to rule in partisan gerrymandering cases concluding that those are political issues beyond the scope of the court.
So lets review. Disassembling the legislation and protections accorded by the Voting Rights Act is absolutely part of the purview of the court, but deciding on partisan gerrymandering isn't. Oh, and for the former they actively overturned existing law.
Citizens United
In 2010 the court held that the free speech clause prohibits the government from restricting how companies spend money on politics. This decision is important because it did several things all at once.
Overturned the Bipartisan Campaign Reform Act with regard to issue advocacy ads
Overturned Austin v. Michigan Chamber of Commerce
Overturned part of McConnell v. FEC
I'm not going to go through all of politics here. If you're conservative you like this ruling. If you're liberal you don't. What I will bring up is the salient fact that this set new policy and it was done by a conservative court. It set said policy by overruling two previously decided court decisions and by overruling congress with regard to the issuing of advocacy ads.
And this was done by a very powerful court and executed along ideological lines. If that's not political and not policy then I don't know what is.
Overturned the Bipartisan Campaign Reform Act with regard to issue advocacy ads
Overturned Austin v. Michigan Chamber of Commerce
Overturned part of McConnell v. FEC
A bit more on Originalism and judges of this jurisprudence persuasion
I have already laid out the differences between our legal system (a common law system) vs a civil law system and how I think originalism would seem to pine for the latter. But it strikes me there's another couple of issues that deserve their own time in court (double entendre intended).
Who made the judges experts on the original intents of everyone who came before them?
Well, the short answer is no one. The supreme court justices are brilliant legal scholars, even the ones I disagree with, but they're definitely not linguistic scholars. I'm not suggesting that they have no idea what the original intention was behind laws, but read about Scalia opining on "cruel and unusual punishment." He wants to get into the head of Madison in 1789 and so takes the most restrictive reading possible and finds:
That this only applies as punishment and so torture isn't illegal by this amendment
In Harmelin v. Michigan he argues against any proportionality and tries to leverage the meaning of the words at the time.
But the problem is that Madison was also using these words to communicate to others. It wasn't until 1791 that the bill of rights was finally ratified by all states. Had they discussed this along the way? Could there have been additional meaning and context developed through the course of debating these topics back in the late 1700s? Is this the point of language? And finally, isn't this what Madison expected?
That this only applies as punishment and so torture isn't illegal by this amendment
In Harmelin v. Michigan he argues against any proportionality and tries to leverage the meaning of the words at the time.
When do you apply originalism?
For my part this is the most frustrating. Sometimes the justices will look for original meaning and intent and Judges like Gorsuch will look to read and interpret based on the plain reading of the text if there is no original intent possible. But other times they'll just ignore those principles and properly apply stare decisis. I'm not sure what the reasoning is other than an outcome that they want.
Still other times you'll find these principles completely misapplied. I just mentioned Scalia's coverage of the 8th amendment in Harmelin v. Michigan. He dismisses the proportionality principle noting that Madison easily could have used those words and that these concepts were certainly well known. But then in DC v. Heller he decides on his own that this same system need not at all apply to the 2nd amendment. Claiming originalism he creates a whole new meaning out of it and then claims it incorporated by the 14th amendment.
No one is claiming that there wasn't a broad understanding of self defense, but just as with the 8th amendment Madison was certainly capable of wording the 2nd amendment differently but chose not to. Isn't this a policy change?
Why I'm afraid of Amy Coney Barrett
In fact I'm not afraid of Barrett. I'm afraid of the majority her membership brings to the court. She's promised to interpret laws as they're written. She's told us not to expect the court to solve all of our problems. We know her feelings about LGBTQ+ referring as recently as last week to "sexual preference" with regard to sexual orientation. We know her stance on abortion because she's told us so over and over again in her publications.
I'm afraid that like many other originalist justices she'll apply it for outcomes she wants and skip that application when it doesn't.
I'm afraid that she'll lean on the notion the court isn't the place to decide an issue like gay marriage and then when a case comes to challenge it she'll rule with the other conservative justices to overturn Obergefell v. Hodges. Obergefell overturned the Defense of Marriage Act. Look back at the history of laws, marriage, and the Supreme Court and you'll find loads of precedent for SCOTUS effectively creating precedent with regards to marriage and fundamental rights. This is now policy.
Likewise I think she'll ignore precedent and rule to invalidate the ACA effectively removing protections for preexisting conditions and during a pandemic. She's publicly criticized Roberts in the past and refused to give any honest answers to how she'll regard the ACA in a future case.
I don't think Barrett is evil, in fact I'm quite sure that as a proud and deeply religious woman she must find Trump truly repellent. That said I'm quite sure that as a deeply religious and conservative justice she'll rule against progressive outcomes claiming that it's not the role of the judiciary to create policy. Similarly, I'm quite certain she'll have no compunction at all to use that same judicial power to overturn existing policy: from previous cases, and actual laws created by congress.
I simply don't trust Barrett or any of the justices when they claim to be against legislating from the bench. Nothing could be more in their interest.
I'm afraid that like many other originalist justices she'll apply it for outcomes she wants and skip that application when it doesn't.
I'm afraid that she'll lean on the notion the court isn't the place to decide an issue like gay marriage and then when a case comes to challenge it she'll rule with the other conservative justices to overturn Obergefell v. Hodges. Obergefell overturned the Defense of Marriage Act. Look back at the history of laws, marriage, and the Supreme Court and you'll find loads of precedent for SCOTUS effectively creating precedent with regards to marriage and fundamental rights. This is now policy.
Likewise I think she'll ignore precedent and rule to invalidate the ACA effectively removing protections for preexisting conditions and during a pandemic. She's publicly criticized Roberts in the past and refused to give any honest answers to how she'll regard the ACA in a future case.
I don't think Barrett is evil, in fact I'm quite sure that as a proud and deeply religious woman she must find Trump truly repellent. That said I'm quite sure that as a deeply religious and conservative justice she'll rule against progressive outcomes claiming that it's not the role of the judiciary to create policy. Similarly, I'm quite certain she'll have no compunction at all to use that same judicial power to overturn existing policy: from previous cases, and actual laws created by congress.
I simply don't trust Barrett or any of the justices when they claim to be against legislating from the bench. Nothing could be more in their interest.
