by Mary Beth Waddell, J.D.
October 22, 2020
Following last week’s confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett, the Senate Judiciary Committee today unanimously voted her nomination favorably to the floor—with no Democrats even bothering to show up. As Sen. John Cornyn (R-Texas) pointed out, they were continuing their theater from the hearing.
At the hearing, some senators rightly noted that those watching were probably confused by what they saw and heard. The Democrats spent much of their allotted time making speeches in opposition to President Donald Trump and his policies, rather than questioning Judge Barrett and evaluating her qualifications. This gave the false impression that she would have policymaking ability if confirmed as a justice. When Democrats did question Judge Barrett, there was significant focus on her judicial philosophy of originalism. While questions about judicial philosophy are entirely appropriate, some Democrats mischaracterized originalism—leading to more confusion and further elevating the false narrative that she would be a judicial activist.
So, what is originalism?
While there are several strains of this judicial philosophy, we should look to Judge Barrett’s own explanation of the doctrine during her confirmation hearing, especially since it is her perspective that will matter here:
I interpret the Constitution as a law … I interpret its text as text, and I understand it to have the meaning that it had at the time [the] people ratified it. So, that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.
She later said:
It’s original public meaning, not the subjective intent of any particular drafter, that matters. We are not controlled by how James Madison [the father of the Constitution] perceived any particular problem, but rather the people at that time.
Of course, Barrett isn’t the only one who holds to this judicial philosophy. Even some with a more liberal leaning, like Professor Akhil Amar of Yale Law School, are originalists.
For guidance on the Constitution’s “plain meaning,” it is important to have some historical context. The Federalist Papers are a series of essays that were written to gain the public’s support for the ratification of the Constitution, so they are a great source of information on the subject. Alexander Hamilton, the principal author of The Federalist Papers, focused on the Judiciary in Federalist 78 through 83 and wrote that the courts should base their decisions on “the fundamental law,” and when a statute is unconstitutional, it is their duty to adhere to the Constitution and strike the statute down.
Some of the Founders feared that the Judiciary, the branch least controlled by the people, could ultimately become the most powerful of the three. Hamilton noted that the Judiciary could not significantly hinder liberty in and of itself, but it would be dangerous if it was ever combined with one of the other branches.
The Federalist Papers are very clear that the Judiciary was expected to be the weakest of the three branches of the federal government. Therefore, Hamilton pointed out that “the supposed danger of judiciary encroachments on the legislative authority” was “in reality a phantom” because its power was bounded by its weakness, constitutional construction, and the legislature having impeachment power if necessary.
With this historical context, it becomes clear that originalism is a judicial philosophy that acts as a brake on runaway judicial power. Looking to the Constitution as our reference point, originalism acknowledges that the Judiciary would be a threat to freedom if it began legislating instead of just upholding the Constitution. Originalism is all about keeping the will of the people central and not imposing the Supreme Court justices’ own beliefs.
It’s important to note that the historical restraint of originalism doesn’t necessitate race discrimination, as was unfortunately the practice in 1791. Democrats implied this as a reason why they generally oppose originalism as a judicial philosophy. As for Judge Barrett, she stated that “Brown [the Supreme Court case that ended school segregation] was correct as an original matter.”
Originalism also doesn’t mean that the Constitution can’t be applied to modern times. Responding to Sen. Ben Sasse (R-Neb.) during her confirmation hearing on how originalism still applies to current issues, Judge Barrett said:
The Constitution—one reason why it is the longest-lasting written constitution in the world is because it is written at a level of generality that is specific enough to protect rights but general enough to be lasting.
When discussing Fourth Amendment issues of today with Sen. Marsha Blackburn (R-Tenn.), Judge Barrett further said:
The Fourth Amendment protects against unreasonable searches and seizures. It doesn’t mean that it protects only the kinds of searches and seizures that those who lived at the time of the adoption of the Bill of Rights could have anticipated. Surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. One can reason from the kinds of privacy protections that were in place in 1791 when the Fourth Amendment was ratified to see if the search of modern technology now is analogous to it.
In her exchange with Judge Barrett, Sen. Diane Feinstein (D-Calif.), the highest-ranking Democrat on the Committee, peppered Judge Barrett with questions on policy and said her vote depended on the answers. Yet this shows that Democrats want the Judiciary to act as a quasi-legislative body—the very thing the Framers feared. As an originalist, Judge Barrett will constrain herself to the law and not impose her own will on the people. She repeatedly let this be known throughout the hearing.
Having originalist judges on the Supreme Court prevents judicial activism and helps keep the one branch of government designed to be most removed from politics apolitical. The politicization and activism we have seen from the Court in recent decades make it more vital now than ever to ensure we have originalist justices on the Court.
The full Senate will begin consideration of Judge Barrett’s nomination on October 23. Debate and procedural votes will occur over the course of a few days, and the final floor vote is scheduled for October 26.
Let us hope and pray that we will have a new justice on the Supreme Court before October’s end!