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.
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