Not even in my wildest dreams did I ever think that I’d be grateful for the Federalist Society, the organization of conservative lawyers to whom Donald Trump has outsourced the search for nominees to the federal courts, the U. S. Supreme Court in particular. Love ‘em or hate ‘em, his Supreme Court nominees haven’t been the intellectual midgets and suck ups he’s strewn around the executive branch. We can thank his former White House Counsel Don McGahn for that. Having seen up close and personal how poorly equipped Trump is to make these nominations, McGahn turned to the Federalist Society to do much of the nominee vetting that Trump couldn’t be relied on for. So if we didn’t get Ruddy Giuliani, William Barr or worse confirmed to the Supreme Court by a spineless Republican Senate majority, McGahn is probably the key figure who spared the country that dismal fate.
I don’t know whether Amy Coney Barrett should be confirmed. That’s way above my pay grade. I haven’t read the voluminous trove of documents, background checks and all the other stuff that the Senate Judiciary Committee’s staff is combing through right now. And by the way neither have you. Nor am I going to try to predict how Barrett will vote on the hot-button issues that everybody is hyperventilating about. I’m shooting for something much more modest. I’m just going to try to rescue her from the caricature she’s being reduced to in much of the professional media and unprofessional media.
Two things that are setting off very loud alarms among Barrett’s detractors are her religious beliefs—she’s a charismatic Catholic—and her approach to constitutional interpretation–she’s an originalist. A law review article that she co-authored in 1998 concluded with the assurance that, “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” What many people are missing now is that the whole point of her originalism is to uphold her 1998 view that judges’ decisions on the bench won’t and shouldn’t just track their personal beliefs. Originalism tries to do that by anchoring a judge’s decisions in the public understanding of the Constitution when it was ratified. That’s going to take some explaining.
A constitutional democracy is a system under which all parties agree in advance to a set of procedures for the conduct of their collective public business. And Article VI of our Constitution, where those procedures are spelled out, provides that, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
When you hear people say that ours is a government of laws, not men, this “Supremacy Clause” is what they’re talking about. But it isn’t just any laws that bind us. It’s only the ones codified in “this Constitution” and any others we make that conform to it. Which raises the obvious question who decides what the provisions of “this Constitution” mean and whether or not other laws conform to it. Chief Justice John Marshall, in Marbury v. Madison (1803), ruled that any law inconsistent with the Constitution was “void,” in other words, not really a law, and that it’s “emphatically the province and duty of the judicial department to say what the law is.”
The legitimacy of the Supreme Court depends on the Justices faithfully carrying out the Marshall mandate to “say what the law is,” not letting their personal beliefs and policy preferences color their judgment about that. Those considerations are reserved for the legislative branch, whose members are answerable to the voters, but are off limits to jurists appointed for life during good behavior.
Carrying out the Marshall mandate is a very tall order, a standard that’s impossible to live up to fully. Supreme Court justices after all are human beings, not algorithms, and bring the whole package of human capacities and flaws to bear on their work.
So the most that we can expect of them is a conscientious, sustained effort to meet the Marshall standard. And originalism, to which Barrett subscribes, was designed as a procedure for aiding justices in that effort. But it got off to a bad start in two ways. First, its most famous advocate was Ed Meese, Ronald Reagan’s Attorney General, who argued for it in response to what he and fellow conservatives objected to as the judicial “activism” of the Supreme Court under Chief Justices Earl Warren and Warren Burger. Originalism came to public attention wearing partisan political garb as a device for constraining the tendency of the Warren and Burger Courts to “legislate” from the bench, usurping the role of the political branches. Second, in early versions, originalism directed judges interpreting the Constitution to rely only on the original “intent” of its authors. That struck many people, rightly, as stupid, suggesting seances or something in the Supreme Court’s chambers where the justices communed with a bunch of dead guys about what they’d been thinking as they penned the Constitution’s text.
Although originalism hasn’t entirely cast off its partisan associations—judges sympathetic to it are considered “conservative” and those not are considered “liberal”—nobody any longer thinks it’s open to ridicule for prescribing seances. Its recent and current practitioners, including Barrett, can rely on a wealth of documentary evidence revealing the public understanding of the Constitution when it was ratified. So while a reasonable person can certainly have reservations about originalism, as I do, it’s not stupid, and there’s a substantial body of scholarly commentary now that takes it seriously. If it ever was “fringy,” it isn’t anymore.
With all this on the table, what can we say about the two issues, abortion and health care, that are generating high anxiety? The Washington Post’s Ruth Marcus fears the worst.
In a recent column, she singled out passages from a couple of Barrett’s law review articles that she called “bombshells.” Here’s one of them from a 2017 article: “For an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change…. At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis [respecting precedent] is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful.”
Against this, Marcus quotes Justice Brett Kavanaugh saying, “that the Court requires something ‘over and above the belief that the precedent was wrongly decided.’” Marcus goes on to say, “…the court has looked to factors such as the quality of the reasoning in the precedent, its age, the degree to which it has been relied on by those affected, and whether it has turned out to be workable in practice.”
The 2017 article that Marcus finds so alarming didn’t focus on stare decisis, but here’s Barrett in a 2013 article devoted exclusively to that topic. “In hot-button cases where differences in constitutional philosophy are in the foreground, the preference for continuity disciplines jurisprudential disagreement. Absent a presumption in favor of keeping precedent, and absent the system of written opinions on which stare decisis depends, new majorities could brush away a prior decision without explanation. If only the votes mattered, and neither deference to precedent nor a reason for departing from it was required, a reversal would represent an abrupt act of will more akin to a decision made by one of the political branches. But in a system of precedent, the new majority bears the weight of explaining why the constitutional vision of their predecessors was flawed and of making the case as to why theirs better captures the meaning of our fundamental law. Justifying an initial opinion requires reason giving, particularly if the majority is challenged by a dissent. Justifying a decision to overrule precedent, however, requires both reason giving on the merits and [her emphasis] an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps…. [Stare decisis moderates] any knee-jerk conviction of rightness by forcing a current majority to advance a special justification for rejecting the competing methodology of its predecessor.” And here she footnotes to an earlier article of hers “emphasizing that even if a court has the authority to overrule precedent, it will not do so absent ‘special justification,’ which requires more than a mere showing that the prior case is erroneous….”
These are not the words of a wild-eyed, incendiary extremist. In fact, she made Kavanaugh’s point, which Marcus quoted approvingly, before Kavanaugh did.
Of the two hot-button issues, health care is the easiest to dispose of. In the 2017 article Marcus discusses, Barrett is critical of Chief Justice John Roberts’ majority opinion in NFIB v. Sibelius challenging the constitutionality of the Affordable Care Act. But her views on that case don’t tell us much about how she might see the Affordable Care Act case currently before the Court. In NFIB v. Sibelius, the issue was the constitutionality of the individual mandate that required people to buy health insurance or pay a penalty for refusing. That’s not the issue before the court now because the individual mandate was repealed in 2017.
As for abortion rights, Barrett is on record saying that she doesn’t think Roe v. Wade will be overturned. I don’t know why she thinks that, but I can think of two reasons why she might. First, overturning it looks like a very heavy lift for an originalist. And second, the number of abortions has been declining for about the last decade for reasons that make it reasonable to expect the decline to continue.
On the originalism angle, last year saw a rash of laws imposing draconian restrictions on abortion access. The laws weren’t intended to be enforced. Rather, blatantly unconstitutional under the Supreme Court’s current precedents, they were meant to be struck down and appealed all the way up to the Supreme Court where their proponents expected one of them to be upheld and Roe overturned.
The central holding in Roe was that a fetus isn’t a person under the meaning of the Constitution’s Fourteenth Amendment, which provides among other things that no state shall deprive “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Justice Harry Blackmun, who wrote the majority opinion in Roe, noted that Jane Roe’s appeal “collapses” if fetuses are persons under the Fourteenth Amendment. But when lawyers for Texas, where the case originated, were pressed to produce federal or state court decisions so holding, they couldn’t. And as recently as 2018, the U. S. Court of Appeals for the Seventh Circuit noted, in Planned Parenthood of Indiana and Kentucky v. Commissioner of the Indiana State Department of Health, that there are still no such cases.
Anti-abortion forces seem to be swinging for the fences, hoping to persuade five members of the Supreme Court to extend Fourteenth Amendment protections to the unborn for the very first time. But that might be a bridge too far for the Court’s two avowed originalists, Justices Thomas and Gorsuch, and for Barrett if she’s confirmed. Eric Foner, who wrote what’s arguably the definitive history of Reconstruction, followed up with a book about the Thirteenth, Fourteenth and Fifteenth Amendments, the Reconstruction Amendments as they’re called. His chapter on the Fourteenth Amendment makes clear that it had everything to do with the status of freed slaves and nothing to do with the unborn. So unless Barrett knows something that Foner doesn’t, it’s hard to see how she could make a case that the public understanding of the Fourteenth Amendment covered the unborn.
The other reason Barrett may think Roe won’t be overturned is that it doesn’t have to be for abortion to be restricted. Supreme Court decisions since Roe, notably Webster v. Reproductive Health Services (1989) and Planned Parenthood of Southeastern Pennsylvania v. Casey, have opened up space for states to erect a whole array of obstacles to abortion access. While other factors are at work, such as a declining birth rate, the Centers for Disease Control and Prevention reported in 2016 that abortions, on all the standard measures, reached a “historic low” since 1969 when the CDC first started tracking them. It may be that the Supreme Court has already been incrementally ceding more of its authority on this vexing issue to the states, as the late Justice Antonin Scalia pleaded with his colleagues on the Casey Court to do. If things are moving in her direction anyway, Barrett may think the better part of wisdom is to let that trend play out rather than put the Court back into the center of the storm that’s certain to break over it if it overturns Roe.
It’s Barrett’s bad luck and ours that she’s been nominated for the Supreme Court by the most toxic president in American history. If she’d been nominated by, say, Ronald Reagan or George W. Bush long before Senate Majority Leader Mitch McConnell’s shabby treatment of Merrick Garland utterly poisoned the well, chances are that she’d be seen as a standard-issue mainstream conservative. But now with political commentators churning out articles with titles like “How Hatred Came to Dominate American Politics,” it’s virtually impossible for anyone to take the measure of a figure in Barrett’s position. The merchants of vitriol have the loudest megaphones while saner voices have only the equivalent of two tin cans connected by a taut string.
But here’s the thing. You can’t assume that Supreme Court decisions are improperly motivated by the justices’ personal biases, whether partisan, religious or whatever, just because you disagree with them. If that’s what you think, then you’re entitled to no more assurance that the decisions you agree with weren’t just as improperly arrived at. But if you can’t bring yourself to believe, in the absence of evidence more compelling than your personal preferences, that the justices act in good faith, then your estimate of judicial review must be that it’s been a monstrous fraud for over two hundred years. I’m not ready to go there.