Addition of Barrett to the Supreme Court could be transformative

The addition of Justice Amy Coney Barrett to the Supreme Court could be transformative in many ways. The effect of a new brilliant and persuasive originalist judge on the balance of the Court, and on the ways in which litigants approach it, will reverberate for many years to come. But among the most significant implications of her presence on the Court may be its effects on the struggle for the soul of the conservative legal movement. 

That struggle is easy to miss if you think about the Court in simply political terms and so imagine that Republican appointees, or even solid originalists, are a kind of steady bloc. But if you pay attention to the Court’s decisions and dissents, and to the broader culture of constitutionalist thinking on the right, you’d encounter a very significant divide. That distinction is sometimes crudely but usefully described as separating more conservative from more libertarian approaches, where the former tend to a more communitarian constitutionalism (in which Congress in particular speaks for the nation in law) while the latter tend toward a more individualist constitutionalism (in which every citizen is more directly sovereign and the courts must protect each person’s natural rights from incursion even by Congress). The differences between them aren’t absolute, of course. Both sides accept the legitimacy of legislation and the necessity of protecting core individual rights. But they involve important disagreements over emphasis and application.

This distinction leads to many further differences in attitudes toward overturning statutes, toward the Court’s own precedents, and toward the role of the judge. The more libertarian approach, best articulated by Georgetown law professor Randy Barnett over the years, is newer, but has tended to be more dominant among the rising generation of conservative lawyers and scholars, and to leave them friendly to a kind of conservative judicial activism (or engagement). The more conservative approach, perhaps best articulated by the late Justice Antonin Scalia, points toward a somewhat more restrained role for the judge, more deference to legislative action, and more regard (though still with significant limits) for the Court’s precedents.

This disagreement has enormous implications for the Court’s approach to key decisions, and the most significant constitutional debates on the right now tend to be shaped by it. But President Trump’s judicial selections seem almost to have ignored it. His two prior Supreme Court picks, justices Gorsuch and Kavanaugh, appear for instance to be on opposite sides of that dispute. But by choosing Barrett, Trump now looks set to leave a much more decisive legacy in this arena.

To see why, we should take a slightly deeper look at the arguments involved. We can do that with the aid of a recent review of Randy Barnett’s 2016 book Our Republican Constitution by a noted legal scholar. Here’s how that review lays out the basics of the more libertarian approach:

Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett’s prior work, that the government must justify incursions upon individual liberty. If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, legislation does not represent the sovereign will but rather the work product of government officials who serve as the agents of individual sovereigns. The citizen is thus positioned to demand that his agents explain why legislation lies within the authority he has constructively given them to secure his natural rights.

This would mean that judges should be powerfully inclined to overturn legislation when they deem it to endanger individual rights, even if Congress’s action can be justified within the formal bounds of the Constitution. To quote the same reviewer’s summary of Barnett’s view:

Like legislators, judges serve as agents of each individual sovereign, and judicial deference to democratic majorities is “misguided and inconsistent with the most basic premises of the Constitution.” Rather than treating legislation as presumptively constitutional, they must treat the citizen’s challenge as presumptively correct.

Simply put, legislatures in this view are far more serious threats to individual rights than courts, and judges are the ultimate protectors of those rights, and have not just a power but a duty to act in their defense.

One problem with this should be obvious: On what grounds do we trust judges more than legislatures? And where shall we find these exquisitely reliable judges? Or as the reviewer puts it:

Barnett characterizes courts as a refuge from the majoritarian excesses of the legislature, but they are only a refuge if they are untainted by the corrupting influences that Barnett sees in the democratic process. The history he recounts leaves one to wonder why he has such faith in courts….Barnett too quickly dismisses concerns about judicial activism. While he is right to insist that courts ought not operate based on a distorted understanding of judicial restraint, he overcompensates in the other direction. There is a risk that a faction can run away with the legislative process, but there is also a risk that a faction will conscript courts into helping them win battles.

This is key to the response of the conservative wing of this debate to the assertions of the libertarian view: The risks of congressional and judicial overreach are both real, but the latter are ultimately more serious because abuses of judicial power are harder to resist and correct. Or, in the words of that review:

Deferential judicial review of run-of-the-mill legislation is consistent with the reality that the harm inflicted by the Supreme Court’s erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute. The Supreme Court’s constitutional mistakes are extremely difficult to correct; one can hope only for a change of heart, a change of personnel, or a change by constitutional amendment. By contrast, it is feasible, even if difficult, to repeal or amend bad statutes, and both Congress and state legislatures do it with varying levels of frequency.

That doesn’t mean that the more conservative approach to the judge’s role is to simply opt for restraint. Here, our reviewer points to a crucial evolution of originalist thought with great bearing on the Court’s future course, so please forgive the lengthy quotation:

Originalism is associated with judicial restraint in the popular consciousness because it emerged in the 1980s as a conservative response to the perceived activism of the Warren and Burger Courts. Originalists insisted that the Court needed to be reined in so that the democratic process could function. They characterized originalism as a mechanism for stopping the minority of Supreme Court justices (and the elites who supported them) from imposing their will on the American majority. Originalism’s ability to restrain judges was trumpeted as its chief virtue….Originalists have refined their arguments in the intervening years, however, and they have abandoned the claim that one should be an originalist because originalism produces more restrained judges. Originalism has shifted from being a theory about how judges should decide cases to a theory about what counts as valid, enforceable law. The Constitution’s original public meaning is important not because adhering to it limits judicial discretion, but because it is the law. And because it is the law, judges must be faithful to it.

This view certainly points to a more restrained role for the judge than the libertarian approach would suggest, but restraint is not its core characteristic. It seeks to be attentive to the meaning of the Constitution and the laws. From this difference emerge vitally important disagreements about the nature of the judge’s power and duty, the significance of precedent, and the nature of the Constitution.

By now perhaps you’ve guessed that the reviewer I have chosen to quote at such length is none other than Amy Coney Barrett, writing in the Winter 2017 issue of the University of Minnesota Law School’s journal Constitutional Commentary.

Her review of Barnett’s book was noticed in the course of her confirmation mostly for its criticism of Chief Justice John Roberts’s reasoning in the 2012 Obamacare case. But it offers far more important insights than that. It is a generous, wise, and careful overview of what may be the core fault line in the legal thought of the contemporary right, and suggests that Barrett is squarely on the conservative side of that dividing line.

The distinctions Barrett highlights will prove very important—particularly as they relate to the question of the Court’s attitude toward its own precedents (on which Barrett further expounded her views in another 2017 essay). They will be of interest to more progressive Supreme Court litigators who will surely start to focus now on arguments for a more restrained judicial role, which in time (especially if the left dominates the elected branches in the next few years but not the Court) could transform the left’s view of the Court.

And they will be valuable to the right, because the emphasis on restraint will be a vital counterweight against the inevitable rise of right-wing judicial supremacy in the coming years. That rise is well underway, but is sure to be accelerated if the right loses its hold on the elected branches for a time even as it exercises more power in the judiciary than it has in many decades.

In this period, it will be vital to remember the true and powerful arguments that conservatives have made against judicial supremacy over the past half century, and to articulate a vision of the Constitution rooted in a genuine republicanism, rather than seeking refuge in a technocratic elite of our own. The judicial state is no more a way forward than the administrative state. The way forward is laid out by the structure and character of our constitutional system, as originally laid out and intended.

It’s impossible to be sure if Justice Barrett will see things this way. But there is reason to hope that she will, and so that the Supreme Court may be better positioned to champion a genuine revitalization of constitutionalism in practice.

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