Musings about Amy Coney Barrett and the Supreme Court

Perhaps Amy Coney Barrett’s appointment, and confirmation, to the Supreme Court will be good for the United States’ democracy in a way that President Trump and Barrett’s other supporters never imagined.

First, however, I must emphasize my strong disagreement with both how Barrett reads laws, including the Constitution, and her views on abortion, gun ownership, the death penalty and a host of other issues. Barrett has stated that she seeks to read laws literally, taking the law at face value, following in the footsteps of her mentor Justice Scalia and others. This approach to exegeting a document (or law) fixes the document at a particular point in time and thus precludes it becoming a living document, adaptable over time to changing circumstances and values. I object equally strongly to reading the Bible or other sacred texts in a similar manner. But the president, and not I, has the power of appointment.

The Senate's Constitutional role is to advise and consent, not to exercise dictatorial control over appointments. Carried to its logical extreme, the Senate refusing to consider appointments by a president of a different political party might one day culminate in a newly elected president being unable to have the Senate consider, let alone confirm, any of the president's appointments as cabinet officers, ambassadors, judges, etc. Our government would cease to function. The US Senate was wrong to refuse to consider President Obama's nomination of Merrick Garland to the Supreme Court. The Senate was right to consider Barrett’s appointment. Barrett’s method of reading law is not uniquely idiosyncratic and she is a qualified jurist.

On a positive note, Barrett’s service on the Supreme Court may force state and federal legislatures to reassert themselves, rebalancing the three branches of government and renewing the system of checks and balances that protects our freedom and democracy.

For example, if a state law requires all valid mail-in ballots be postmarked by a specific date with no provision for any exceptions, the best remedy is for that state’s legislature to revise the law in view of exigent circumstances such as the Covid-19 pandemic. Instead, voter rights groups have tended to seek relief through the courts or executive action. Recent Supreme Court decisions upholding laws as written were not premised on voter suppression but adhering to the law as written.

Bypassing legislative action in favor or executive or judicial action has resulted in the executive and judicial branches becoming disproportionately powerful. Since LBJ, each successive President has achieved his goals, bypassing legislative gridlock, by using executive orders to a greater degree than did his predecessors. One unintended result of this reliance has been to move the US in the direction of dictatorship, a cry heard from the right during Obama’s presidency and the left during Trump’s.

In a similar manner, interest groups have utilized the courts, especially federal courts, to achieve public policy goals. Arguing that a woman’s right to decide whether to have an abortion is protected by a claim to privacy that depends upon the due process clause of the Constitution has always seemed highly problematic to me, i.e., as in Roe v. Wade. A much stronger approach would be to pass a Constitutional amendment that establishes a right to personal privacy, another amendment that gives each person the right to accept or refuse any medical procedure or treatment, and a third amendment that establishes equal rights for women. Alternatively, each state could pass laws or constitutional amendments for the same purposes. The problem with either of these approaches is that they would require multiple electoral battles to control the federal and three-quarters of the state legislature in the case of Constitutional amendments or all state legislatures in the case of state action. Those campaigns would entail great effort, much time and substantial funds. Winning a court case is simpler, quicker and less costly. Yet the unintended consequences of taking the shortcut are a prolonged, deeply entrenched conflict over abortion unique to the US and concurrently permitting federal and state legislatures to abdicate their law-making responsibilities.

Democracy is messy. But democracy is the best system of government we know. And the perpetuation of democracy depends upon a set of checks and balances to prevent tyranny by any of government’s three branches. The US needs to resuscitate atrophied state and federal legislatures in order for its democracy to survive.