The manner in which the confirmation of Amy Coney Barrett to a lifetime appointment on the U.S. Supreme Court is being rushed by Republicans is a legitimate concern.
What should not be, though, is her approach to interpreting the U.S. Constitution and federal laws and applying them to cases that might come before her on the bench.
Barrett’s testimony during her confirmation hearings was perfectly sensible. It only seems to be radical because of the trend for decades to use the nation’s highest court as a place to write laws that can’t get through Congress as much as a place to interpret those that do.
If Barrett is confirmed, as is expected barring some unforeseen development, she will give the so-called “originalist” approach to jurisprudence a solid majority on the court — a corrective that has been needed for some time.
Originalism was most famously championed by a previous justice, the late Antonin Scalia, to whom Barrett likens herself. It says that laws should be read by the clear language in which they were written, not reinterpreted according to someone’s modern sensibilities.
The job of updating or rewriting laws, if such is needed, according to originalism, should be the purview of the legislative branch, not the judicial one, with input from the executive branch, which has the power through the president to veto what Congress approves.
What has happened, though, is that a different school of thought took precedence on the court until recently. It said the Constitution is not set in stone but rather should be treated as a “living, breathing” document that the Supreme Court has the right to adjust according to changing times and circumstances. That approach has turned the court into a political, quasi-legislative body — one of the reasons that confirmation proceedings have become so volatile.
Barrett correctly says that’s not what our founders intended when they created three equal branches of government, with each set up to be a check on the possible excesses of the other.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett told the Senate Judiciary Committee. “The public should not expect courts to do so, and courts should not try.”
The reason originalism upsets Democrats and feminists so much is they anticipate that if it becomes the prevailing opinion on the high court, then Roe v. Wade, the 1973 decision that legalized abortion nationwide, will be overturned.
It should be. Roe v. Wade was rooted in a judicial fiction — namely, that the Constitution included a right to privacy. The Constitution and its Bill of Rights spell out a lot of protected freedoms, but a right to privacy isn’t one of them.
If the American people want it to be, and they want abortion on demand to be the law everywhere in this nation, then they should pressure their elected representatives in Congress to amend the Constitution and persuade three-fourths of the states to concur.
In 1973, the Supreme Court short-circuited the process. That’s why nearly a half-century — and 60 million artificially terminated pregnancies — later, the American people are still bitterly divided about abortion.
Whether a woman’s right to reproductive freedom supersedes an unborn child’s right to life is not a decision for unelected judges to make. It is one for the people to collectively make, through the actions of the representatives they elect to write the laws.
If Barrett’s nomination puts the onus of that decision back where it belongs, that would be a very good thing.