As the American people judge Amy Coney Barrett’s worthiness for a spot on the Supreme Court, they continue a battle over a very basic question: what does America’s Constitution mean, and what can judges do with it? While the battle lines have been sharply drawn between staunch conservatives – spearheaded by Barrett – and “get-with-the-times” progressives, this doesn’t do the debate justice anymore. A growing crowd of dissenting conservatives are calling for a change in the way their party sees the role of the Supreme Court, and disappointingly for them, Amy Coney Barrett does not support their cause.
What generally lumps Barrett in with “the right” is her answer to the question of what the constitution means. It’s the judicial philosophy of originalism, and it’s an answer that many media pundits and progressive thinkers hold as horrifically conservative. As Barrett told senator Lindsay Graham during her confirmation hearing, originalism says that the constitution “ha[s] the meaning that it had at the time people ratified it. So that meaning doesn't change over time and it's not up to me to update it...”
In the usual originalist worldview, staying loyal to the “original meaning” of the Constitution makes sure that the judges who follow the constitution don’t find themselves in the dangerous position of creating a new one, according to whatever values they might think are important. If US citizens can’t change the laws that govern us without passing new ones, why should the state be able to redefine the constitutional law that governs it without actually amending the Constitution? That wouldn’t just be irresponsible; it could mean the end of the Rule of Law. Small-government conservatives tend to find a useful friend in Originalism through this thought process, giving them a great antidote to that slippery slope.
For years in mainstream conservatism, restraining the government in general meant restraining “unelected and unaccountable” judges in particular. “Judicial restraint” got conservatives’ unquestioning praise while “judicial activism” was attacked as a pure power grab. That is, until the entire argument was flipped to turn active judges into the heroes that conservatives never knew they needed.
Throwing around terms like judicial activism and restraint is not meaningful until, as economist Thomas Sowell points out, people start asking two “logically obvious but often ignored questions: Activism toward what? Restraint toward what?” Thinking seriously about those questions is what helped conservative Pulitzer Prize-winning columnist George Will learn to love judicial activism. To Will, the traditional defense of judicial restraint has not meant restraining the court to reign in the whole government, but to empower another rival branch: Congress.
So many Congressional acts have “the presumption of constitutionality” on their side, and that ought to be a big problem for conservatives. When judges give Congress permission to draw its own line for when to stop getting bigger, then why should it be expected to stop at all? When Will reports that the Supreme Court struck down only 0.65 percent of Congress’ laws between 1954 and 2002, he sees the court’s utter shyness as a colossal failure: “those who praise such judicial passivity must implausibly assume… that government ‘hits the constitutional strike zone’ at least 99.5 percent of the time. How likely is this?” Because the checks and balances on Congress have been whittled away, “individuals ‘face a judicially manufactured uphill battle any time they challenge [Congress’] infringement of their rights.’”
Will’s worries are refined by Georgetown law professor Randy Barnett, calming conservatives who are still fearful of legislating from the bench: “instead of ‘judicial conservatism,’ which admonishes judges to put their thumbs on the scale to uphold laws, we favor ‘constitutional conservatism’ in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation.” Barnett hasn’t lost sight of the restraint that originalists want to see. And judicial “activism” might send some conservatives into knee-jerk opposition, so Barnett chooses a much more benign, responsible sounding name for what he wants: judicial “engagement.”
But while Barnett, Will, and many others have convinced a lot of conservatives to want an engaged Supreme Court, they haven’t been able to convince the one conservative judge that all of America has their eyes on. In 2017, Amy Coney Barrett (ACB) tried to dismantle Randy Barnett’s book-length defense of judicial engagement, Our Republican Constitution. To ACB, Barnett’s innovative theories only blur the line between the justice and the congressman.
Steeped in the traditional “judicial conservatism” of America’s most (in)famous originalist Antonin Scalia, ACB claims that Barnett’s vision of a vigilant watchdog court that’s eager to tear apart any improper legislation “fails to account for the realities of the legislative process.” She says that when it comes to trampling our liberties, Congress treads more lightly than the Supreme Court because “any bill that runs the gamut of [the legislative] process represents compromises made along the way... to resolve the competing desires of different constituencies.” So when any jeopardized right isn’t a “fundamental” one like freedom of speech, the least dangerous court would be one that just stays out of Congress’ way: “the current, deferential [court] reflects humility about the capacity of judges to evaluate the soundness of scientific and economic claims.” In ACB’s eyes, the original originalists had better ideas than whatever dream Barnett is trying to realize.
But Barnett quickly threw the ball back into ACB’s court, painting her argument as “magical thinking” disguised as stonewalled realism. ACB, just like her mentor Antonin Scalia before her, was profoundly hypocritical because “those who, like Barrett, question placing one’s ‘faith in courts’ need to explain why judges get to choose some rights as ‘fundamental’... but not others… [this] is inconsistent with a professed skepticism of the ‘institutional capacity’ of judges.” When digging deeper into the “realities of the legislative process” that ACB wants to focus on, Barnett sees a process that almost never pays attention to constitutionality because lawmakers know that courts will let them off the hook in a sticky situation.
ACB might claim that courts shouldn’t get to decide what “scientific and economic” policy looks like, but those policies shouldn’t get to override individual rights just because some lawmaker said they should. To Barnett, the least dangerous and most effective court would shatter the presumption of constitutionality and build a “presumption of liberty” in its place. It’s the best way to give regular citizens a chance against their rulers in the courtroom of supposedly blind justice.
This very scholarly sparring match between two of the nation’s leading originalists shows us that being a self-proclaimed “originalist” isn’t enough to be heralded by all conservatives. Some, like Barnett, have an eye toward a very different and (for them) more hopeful future. To those small-government conservatives who are starting to question the deferential originalists around them, Amy Coney Barrett is not the unstoppable force that’ll stunt the growth of the state and revive a dead Constitution. In their eyes, she’s more of the same.