The arguments for and against Amy Coney Barrett’s nomination

Xavier Cullen and William Dean

By William Dean

The Supreme Court gained another constitutional originalist with the confirmation of Amy Coney Barrett. Much of the discussion around Barrett’s nomination focused on two things: the person and the process.

Photo from Flickr

What is originalism and why is the Democratic party so staunchly opposed to this judicial philosophy? Contrary to the left’s pipe dreams, Supreme Court justices are not members of an all-powerful legislature.

Justices exist to apply prevailing laws to the cases before them, not make up law as they go along. If the latter were true, then “my Ruler, and, the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” as the late Justice Antonin Scalia wrote.

Barrett considers Scalia to be one of her mentors, citing her clerkship for Scalia as the source of lessons that still resonate with her today.

“His judicial philosophy was straightforward: a judge must apply the law as written, not as she wishes it were,” Barrett said in her opening statement at her Senate Confirmation Hearing. “Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws and not of men.”

Critics will say that an originalist interpretation of the Constitution is too strict and would bar almost all current justices from serving on the Court. But as Georgetown law professor Randy Barnett said at Buckley Program’s conference on the Constitution and the Courts, originalist philosophy states that, “the meaning of the Constitution should remain the same until it’s properly changed.” There are plenty of avenues for creating new laws, but the Supreme Court is not one of them.

Furthermore, originalism does not apply to the Constitution alone. It is a guide to be used when approaching any law. Congress passed legislation such as the Civil Rights Act of 1964 in the proper manner, meaning that it is binding law that the Supreme Court must follow.

The left’s real concern is that Barrett will not act as one of their lackeys. Justices confirmed under Democrat presidents have a strong tendency to believe that our founding document is a “living Constitution.” Through this ambiguous phrase, pure hogwash has flowed from the Supreme Court, becoming binding precedent.

By trusting the justices to use their best moral judgement when reaching decisions, the “living Constitution” philosophy opens the door for judicial activism and radically redefines the Court as a legislature. This judicial philosophy completely ignores the fact that the Supreme Court applies the law the people have adopted in Congress. If the law is wrong or poorly written, then politicians should walk across the street and make their case in the Capitol Building.

Complaints of Republican hypocrisy for confirming Barrett while stonewalling Merrick Garland’s nomination in 2016 are no more than revisionist history and a fundamental misunderstanding of how our branches of government interact. When filling a vacancy on the Court, the president nominates and the Senate advises and consents. This does not mean that the Senate exists to rubber-stamp the president’s nominations. The Senate always reserves the right to reject a nominee.

Understandably, Democrats still felt cheated out of having a say in the matter. But it would be prudent to remember the late Justice Ruth Bader Ginsburg’s words when she said, “the president is elected for four years, not three years.”

America spoke in 2014 when it gave Republicans a Senate majority to counter President Barack Obama’s ambitions. America spoke again in 2016 by electing a Republican president and in 2018 when it reaffirmed and expanded the Republican Senate majority.

By any reasonable metric, America elected Republicans to fulfill the obligations of their office, which included nominating and confirming Barrett.

Democrats worry that Barrett may have a severe conflict of interest in cases brought before the Court.

Why am I not concerned with Barrett’s purported indebtedness to Donald Trump? Because the American Bar Association (ABA) confirmed her competence and impartiality. In a letter to the Senate Judiciary Committee that evaluated Barrett’s “integrity, professional competence, and judicial temperament,” the ABA determined that she is “Well Qualified” to serve on the nation’s highest court. The ABA does not live under a rock, and if it believed she lacked impartiality, it would have said so.

Further testimony by lawyers for the ABA Standing Committee on the Federal Judiciary said that Barrett is “an intellectual giant” with a “staggering academic mind.” They continued, saying that she is “decent, selfless and sincere” and that she shows “stellar judicial temperament.”

On national television, Senate Democrats failed to muster any effective opposition to Barrett’s qualifications. After seeing how unsubstantiated accusations of rape went over with the American public during Justice Brett Kavanaugh’s confirmation, Joe Biden’s party found no successful line of attack.

If Democrats can take comfort in anything, it is that their overall power is greater than Barrett’s. If the Supreme Court must follow the law that the people have adopted as Barrett believes, then take control of Congress and pass legislation you believe to be right.

By Xavier Cullen

To be completely frank, I don’t care about originalism. It’s just a fancy label used to defend barbaric beliefs that were established decades and even centuries ago. It paints judges as these neutral arbiters that make decisions not based on what they personally interpret, but on what the original writers of the law intended, even though judges quite frequently are affected by their own faiths and feelings.

Illustration by Connor Lawless

What I and millions of other Americans care about, though, is how Justice Amy Coney Barrett’s beliefs will affect her decisions on the Supreme Court. So, what will those future decisions look like? Her record and past words speak for themselves.

On the topic of equal rights, Barrett’s religious beliefs supercede basic humanity as she is staunchly anti-LGBTQ rights and anti-gay marriage. According to the Washington Post, she has done five paid speaking engagements since 2011 with the Alliance Defending Freedom (ADF), which opposed the Obergefell v. Hodges ruling that forced states to issue marriage liscenses to same-sex couples. According to the Independent, 27 LGBTQ groups called the ADF “arguably the most extreme anti-LGBT legal organization in the United States.”

Barrett wants to strip the right to healthcare from millions of Americans by opposing the individual mandate of the Affordable Care Act as well as impose tighter restrictions on abortion.

These policies are essential to making sure people get the care and rights that they deserve by being a human in America. No person should have to choose between taking life-saving medication or going bankrupt — a decision hundreds of thousands of families are forced to make, according to The Guardian. Barrett wants to make sure that this cruel system continues.

Supporters of Barrett might claim that it’s not the job of the Supreme Court to change existing laws but to instead only reinforce and interpret existing ones. However, that undermines the immense power the Supreme Court holds.

These nine justices can overturn any previous ruling, deem any law unconstitutional and even allow blatant violations of the Constitution. If Barrett and the other justices wanted to, they can steer America toward a more inclusive, progressive and equal country, but they won’t.

To those who say that interpreting the Constitution in this way is unethical, I refer you to Rev. Martin Luther King Jr.’s words from “Letter from a Birmingham Jail”: “There are just laws and there are unjust laws … an unjust law is no law at all. … One who breaks an unjust law must do it openly, lovingly … I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”

Barrett’s hands aren’t tied, she currently holds one of the most powerful titles in the U.S., and she’ll use it to propagate her anti-equality, Christian beliefs.

However, the worst part is that the people have no direct say on who gets to hold the most powerful position in the country. And the person who nominated her wasn’t even voted for by the majority of Americans.

In fact, the two past Republican presidents didn’t win the popular vote, but rather solely won because of the un-democratic Electoral College. These two have nominated five of the nine justices on the Supreme Court.

Since Barrett and four of her colleagues have been appointed through un-democratic means, why would they fight to change it? They will reinforce barbaric laws and create new precedent that strips millions of people of their basic rights, and they will likely get to do that until the day they die. Not to mention the upcoming legal battle that will arise from the voter suppression of mail-in ballots. These justices will more than likely decide who wins the presidency and since the majority of them have their current job through un-democratic means, why would they fight to fix it?

Anyone who agrees with the confirmation of Barrett to the Supreme Court is agreeing to the destruction of America’s democracy and welcoming in a new chapter of American authoritarianism. If only the Democrats in Congress had fought more.