According to several news sources President Trump will announce that his Supreme Court candidate to succeed Ruth Bader Ginsburg is Judge Amy Coney Barrett, who sits on the U.S. Court of Appeals for the Seventh Circuit (based in Chicago) and is a law professor at Notre Dame.
Barrett, 48, was named to the Court of Appeals by Trump in 2017 and was also reportedly a finalist for Anthony Kennedy's Seat of Justice in 2018. She has been portrayed as the favorite of the social conservatives who want to take action against Supreme Court abortion jurisprudence. She is unusual when compared to famous (and perhaps strategic) scarce candidates like Brett Kavanaugh and Elena Kagan for their lengthy paper walk on constitutional issues. As a legal scholar, she has written extensively on what obedience to the original meaning of the Constitution requires of judges and members of Congress. how to reconcile the importance of a precedent with being true to the original meaning of the Constitution; and how precedents can be used to convey deep disagreements about the law.
As a result, we know more about their legal beliefs than those of any SCOTUS candidate since maybe Ginsburg. We know she identifies as an originalist who believes that the constitution's original public meaning is binding law. We also know, however, that she is skeptical of the radical libertarian originalist idea that economic regulation is presumably unconstitutional and that she believes that some Supreme Court decisions that originalists may conclude are wrong, nonetheless as "precedents" which the Court may adhere to.
Her legal writing has also sparked violent reactions from critics. An article (with colleague John Garvey) on when Catholic judges might be required to withdraw from death penalty cases sparked criticism from Senate Democrats during their appeals court confirmation hearings, who indicated that Barrett did not separate their beliefs from their jurisdiction could (an indictment she firmly denied).
Another piece (with late Notre Dame colleague John Copeland Nagle on how members of Congress should incorporate the original meaning of the Constitution into their votes raised eyebrows by some commentators for first stating that there are originalist arguments (which the paper itself does not accept except for the sake of reasoning) to believe that West Virginia has been invalidated as a state; that the 14th amendment was not properly ratified; and that paper money is unconstitutional among other unconstitutional conclusions.
To better understand her academic writings, I turned to Keith Whittington, Princeton Politics professor and leading expert on originalism and constitutional interpretation. I wanted to get a better sense of what it means for Barrett to be an originalist, how her variety of originalism works, and how to understand her best-known scholarly work.
The following is a transcript of our conversation, edited for length and clarity. Note that it came before Barrett's actual nomination. If you're looking to dig deeper, Whittington teaches a course on Constitutional Originalism and the curriculum is a good place to start. See also the introduction by my colleague Ian Millhiser in Barrett.
Let's start very simply: what is originalism?
I see it simply as an obligation to assume that, on the one hand, the meaning of the constitutional text is determined at the time of its adoption and, on the other hand, that this has consequences for the assessment of cases by judges. Then there is a lot of latitude as to how much consequence this should have for judges in certain cases, how exactly we determine what the meaning of the constitution is, etc.
But (law professor at the University of Virginia) Larry Solum has characterized these as the two central principles of originalism, and I think that is correct.
Is it possible to divide the current Supreme Court into originalists and non-originalists? Who would fall into each camp?
I think they all act as originalists to some extent. Many different approaches to thinking about constitutional decisions would say that there are times when originalistic arguments are appropriate and you should be careful.
One case I wrote about recently, the case of the “faithless voters” from this last term (on whether or not electoral college voters have to vote for the presidential candidate who won their state), Elena Kagan wrote the majority, writes Clarence Thomas agrees, and both opinions are fundamentally originalistic in their structure and design. There are moments when all judges are willing to rely on these types of arguments.
Some see it as more fundamental than others and resort to it more exclusively. Thomas is clearly the leader on this front. Since Scalia left the court, Thomas has been the most rigorously devoted to reflecting on historical meaning, and insists that judges should reflect on the original meaning of the text and try to apply it to cases before them.
I think it is too early to say how much Kavanaugh is particularly committed to originalism. Gorsuch must have indicated that he thinks it is important. I think both Alito and Roberts, on the other hand, have stated that they are a bit more pluralistic. Originalism is part of their decision-making, but not the only consideration they think about.
They are similar to previous Conservative judges. I think Chief Justice Rehnquist was like that. He talked about originalism sometimes, sometimes it is important, but sometimes he moved away from it and didn't really focus on it. Any conservative judge would say it is important, but they are not all equally determined to think that it is the primary goal that should determine their opinion.
Let's talk about Amy Coney Barrett. She is a legal scholar who has contributed significantly to debates about how originalists should act and rule. Where does it fall on some of these questions?
She is dedicated to originalism as a truly directional light, more so than some others. It is more explicitly committed to the notion that one should be an originalist and that this is the main principle for Richter than Roberts or Kavanaugh was historical. In this sense she is more like Thomas and Gorsuch. It has a clear legal philosophy and originalism is central.
I think it's less clear to what extent she is a pure textualist like Gorsuch is, and to what extent she is willing to think beyond the text when considering original principles. I don't think she really emphasized the kind of tight textualism Gorsuch emphasized. I suspect their originalism will look a little different from his version.
On the flip side, she has also suggested that judges should care more about rigid decisions (the doctrine that courts should generally stick to their previous decisions) than Thomas likes to do. I think she's a more moderate figure than Thomas in that regard. She would try to navigate precedents that conflict or are in tension with the original meaning rather than just thinking that they should be thrown overboard.
She is clearly some kind of originalist. She doesn't look like Gorsuch or Thomas, but she probably plays in the same sandpit.
I am glad you made the decision. An article she wrote with colleague John Copeland Nagle, "Congressional Originalism," has caused some concern among critics, including for leading with a list of precedents that may conflict with the original meaning of the Constitution.
Brown v Board of Education is the most dire, but she does mention arguments that West Virginia was invalid, that the 14th Amendment was not properly ratified, that paper money is unconstitutional, and so on. She doesn't say she thinks they should be overridden – and in fact suggests that in most cases the point is moot as these issues would never come to justice – but I think myself setting up the examples caused problems.
How should people weighing their nominations think of this paper?
I tend not to think it's terribly important. To some extent it is an academic company trying to think about, “What are the tensions here? What does it mean to take a certain theoretical perspective? What are the implications if you believe that there is tension between the theory and some of these fundamental constitutional decisions that have been done over time, whether it's things like creating the state of West Virginia or things like Brown versus Board? “For her this is just a starting point to consider how to deal with the fact that there will be this tension.
Importantly, she didn't think, "You must overturn all these decisions," whether it means getting rid of the state of West Virginia or whether it means overturning judicial decisions that are difficult for originalists to justify on grounds. From their point of view, the question is: "What are you doing about the fact that, from a theoretical point of view, mistakes have been made over time?" The answer is not always that you have to correct all mistakes. Sometimes you have to figure out how to deal with these mistakes. The interesting thing about her job is that part of her job is to figure out how to deal with our mistakes. From a theoretical point of view, this is not an easy question.
From a legal point of view, they often don't have to face this directly. One academic is keen to say, "Let's look at the making of West Virginia, or the Brown decision, and see how this is constitutional and what it means to the way the system works." From a judge's point of view, this is not a practical problem that will lie before you. However, there can be an impact on how you feel about issues that have more practical ramifications for your behavior as a judge. I think your company in trying to think more practically about what those implications are is helpful.
One specific concern many left-wing people have about Barrett is that the commitment to originalism sets important precedents – Roe v. Wade is the obvious, but also the cases where, for example, a right to same-sex marriage is established – in danger of being overturned if she concludes that they are contrary to the original meaning of the constitution.
Barrett's willingness to admit that we have to live with some decisions that she sees as "mistakes" in the theoretical sense is quite interesting then. Why would an originalist think that? Why doesn't every originalist act like Thomas by consistently following the precedent of the original meaning?
For at least a couple of reasons. One is a practical political one where you cannot undo all mistakes. But the more you think there are quite dramatic mistakes. The more you need a theory about "How do you live with these mistakes instead of trying to reverse them?" If you feel that any of the bugs your theory identifies are actually relatively minor and small, it will be easier for you to imagine getting out of there and cleaning them up. The more you think they are actually big and important, the more important it becomes to develop a theory that will allow you to live with these mistakes and figure out how to move forward in the face of the existence of those mistakes.
Originalist theory has moved on this front. It is increasingly interested in the question of how many and how significant the errors are from an originalist point of view. And how do you then deal with and manage them?
Part of the early academic literature in particular was often interested in taking quite a revolutionary stance and pointing out that there are many big, important, and wrong decisions that we should try to correct them all. Newer literature has really moved away from it, also because it has become more practical. It's no longer just an academic exercise.
The other problem that many originalist scholars revolve around is that judges in the past have made all sorts of decisions that they themselves did not try to justify in the original meaning. It is easy to believe that all of these things are wrong. But instead, we could start analyzing these in more detail and actually find that you can build an originalist argument that will take you to a very similar place. So we should try to consider the extent to which these precedents can actually be saved, rebuilt from an originalist point of view on better foundations, in order, given these precedents, better guidance on what to do in the future. and how we should try to develop them, how they fit more coherently into the overall constitutional scheme.
The other paper of hers, which has received a lot of popular attention, relates to how judges should reconcile their beliefs and decisions. She partially responds to William Brennan, a Catholic liberal at court, who spoke of leaving his faith at the door as a judge and partially disagreeing with him.
What do you think of this piece? Does that mean something important about your case law?
My impression of this was that she would see it as a problem and therefore would like to try to figure out how to reconcile it. Many people have run with the idea that they are emphasizing the importance of their religious beliefs as well as the religious beliefs of other judges and judges. But I think it's one of those cases where that's the starting point for her to say, "It's true that judges have religious beliefs. And those religious beliefs sometimes have implications for the types of problems that come before the court. "And then there is the question of how judges should deal with it. Your conclusion is certainly not an easy one that judges should therefore enforce their religious beliefs.
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