Kapa‘a lawyer does his homework on Barrett

With hearings on the nomination of Amy Barrett imminent, as a retired lawyer I tried to educate myself as to whether she would be a qualified Supreme Court justice.

I read a few of Barrett’s law-review articles and summaries of her appellate opinions, as well as a few peoples’ opinions about her.

I am not now opining on the hypocrisy of having these hearings right before a presidential election — GOP doctrine in 2015-16, when it more suited them, was such hearings were inappropriate — or the similar hypocrisy that the COVID pandemic makes it too dangerous for the Senate to consider the massive amount of legislation passed by the House of Representatives, but not the Barrett nomination. Also, I don’t care about Barrett’s religion, or her membership in religious groups, or the number of her children, except to the extent it affects her judicial thinking.

She is considered brilliant by those who have worked with her, including liberals. They also describe her as kind. She was several times acclaimed an outstanding teacher while a professor of law at Notre Dame. Her writing style is unusually readable, and she carefully charts her arguments not only for herself, but for the reader. All this is favorable.

While not a litigator in her short time in private practice, her clerkships, writings as a professor of law, and her short time on the federal Court of Appeals give her credentials far beyond those which can be mustered for Kavanaugh. It is true that she has nowhere the practice experience or legal renown as had Ruth Bader Ginsberg or many other justices, but she is unquestionably more than simply a Republican sycophant appointed to repay (an imagined) debt for decades of maligning the Clintons, as was Kavanaugh. This conclusion is slightly tempered by her ill-considered maskless attendance (with her children) at her Trump introduction ceremony. Did Republican influence overcome her common sense and instincts as a mother?

While obviously Barrett is very “conservative” in the pre-Trump sense, she will not embarrass the Supreme Court. Her opinions will be well-researched and present a view that will allow lower courts and legislatures to understand the law set forth.

For liberals, most of her opinions will be considered disasters. One of her earliest legal writings is about the dilemma faced by Catholic judges in ruling on death-penalty cases; Catholic dogma is against capital punishment. Her writing discussed, but basically dismissed, the notion that a Catholic judge could simply put the law first.

In her comments in the Senate upon her nomination as an appellate justice, she somewhat characterized that writing as immature, adopting more the view that it is proper, and feasible, for a Catholic judge to follow American law, whether or not our civil law corresponds to papal doctrine.

But that tendency to see something as “law” — as an absolutely binding force whether religious or legal — permeates her thinking. She views herself as a Scalia (she clerked for him) “originalist:” one who thinks the original 1790s public meaning of a Constitutional phrase not only provides guidance, but is absolutely controlling: it is the only actual legal “law” of the Constitution.

But Scalia would frequently discover “original meanings” which would have confounded the Founding Fathers in order to fit his desired outcome into his professed originalist view of the Constitution. In theory, one unversed in constitutional law or American history should have great difficulty predicting how an originalist would rule in particular cases.

However, such a layperson would not have lost any money betting steadily on Scalia’s voting for whatever the Republican Party’s desired outcome was. In truth, liberal justices similarly regularly reason backward from desired outcome to legal support.

Barrett acknowledged Scalia’s supposedly occasional pragmatism, but her core thinking still shies from compromise and pragmatism. It is “principles above all,” as a devout believer, whether Catholic or justice.

Because of that, despite her writings espousing a theory of individual consent to being governed rather than societal establishment of governments, she will not give much attention to the actual effects on people of her decisions.

Virtually all of her writings are highly abstract, not quite “how many angels can dance on the head of a pin,” but certainly not grounded in or even influenced by public policy. In that way, she will be a polar opposite of Ginsburg, who did focus on people and effects, and was not constrained by an originalist doctrine, seeing the Constitution as a guideline to jurisprudence in the 21st century, not just in the 18th.

So while Ginsberg might have first mentally decided that universal health care is an appropriate federal concern, and crafted a decision and selected precedent to uphold the ACA (Affordable Care Act, ObamaCare), Barrett will easily and without a moment’s hesitation rule the ACA unconstitutional if she finds it not within her take on Thomas Jefferson’s view of the federal government yet to be established, without her giving a thought about the 40 million or so Americans who would become and forever remain medically uninsured. Many think this is the proper approach for the Supreme Court: policy is for the other branches.

On abortion, I take her writings on “super-precedents” — cases she believes are wrongly decided but due to age and acceptance cannot be overrruled, and in which category she pointedly did not include Roe v. Wade — as indicating strongly she might well vote to overturn Roe.

She was approved by the Heritage Foundation, which evidences that in that vetting, she threatened Roe. She is known for quoting Scalia that “the Constitution does not mention abortion” (although one can properly argue that the Constitution and the Founding Fathers didn’t mention many policies conservatives hold dear, like unconstrained capitalism).

In considering abortion, her originalism will be symbiotic with her Catholic mindset. Given her immersion in Catholic philosophy (Notre Dame, also her law school, is a Catholic university; Barrett had an exclusively Catholic pre-college education) she will not even realize that she is basically endorsing a Catholic theocracy through the back door. Notwithstanding, although I personally adamantly support a woman’s right to choose, I don’t believe that Roe should be a litmus test for Supreme Court justices, although the abortion issue for many wags the dog on judicial appointments.

I hope that Barrett, like many other bright conservatives appointed to the Supreme Court (not Clarence Thomas), will after time become aware of and troubled by the effects of her decisions, rather than limited to considering only whether the opinion was “correct” as an abstract originalist exercise.

If not, her term will be a difficult 40 or so years for all but far-right ideologues. If and when Barrett realizes, and cares, that her decisions significantly affect the day-to-day lives of millions of Americans, and aren’t simply abstract propositions, and that making policy is unavoidable for the Supreme Court, she may gradually become less distant.

Or, she may not, and pat herself on the back for her originalist decisions which maintain fidelity to her view of the meaning of the Constitution in 1790, but which as a consequence consign much of our population to 1790s poverty while crippling the federal government from ameliorating that situation.

I hope to learn more about her as the hearings orchestrated by Lindsey Graham progress.

•••

Jed Somit is resident of Kapa‘a.