I am personally thrilled with Amy Barrett as the newest Supreme Court Justice, though far from thrilled by the process by which she became such (including the Republican-controlled Senate’s procedural hypocrisy in deferring Garland’s hearing but rushing Barrett’s). But amid the discouraging signs of the politicization of the Supreme Court confirmation process, the decline of political discourse in general, and the nation’s increasing polarization, I read one article that I found very encouraging: a self-proclaimed liberal writer who personally knew Justice Barrett back in her days as a clerk for Scalia and who, though anticipating that he will disagree with many of her opinions, is glad that the court is getting a brilliant legal thinker who is also a good person. The nation deeply needs this kind of capacity to recognize goodness and merit in people who are on “the other side,” and I want to recognize and honor that when I see it.
I am personally thrilled with Justice Barrett, because I agree with her jurisprudential philosophy. The fundamental political principles on which the nation was built includes the separation of powers, whereby the legislative branch makes the law and the judicial branch interprets it by applying it to concrete cases. Even though the judicial branch’s power is theoretically limited to deciding particular cases, there is not always a clear distinction between “making the law” and “interpreting the law”; but another part of the nation’s fundamental political philosophy goes some distance towards clarifying how the distinction applies: majority rules. On political issues about which there is public debate and no clear position in the Constitution, the People are to elect their representatives based in part on their stances on the issues in debate, and the representatives then make laws through the process set forth in Article I of the Constitution. Therefore, on at least those issues where there is robust public debate, where politicians’ views on the issues form a part of the basis for their campaigns and for the votes in favor or against them, the political process should be allowed to play out, with political majorities deciding the nation’s policies, and free in the next generation (or the next election cycle) to change them. There are exceptions to this fundamental principle when the laws that result from the political process violate Constitutional rights.
Sometimes the extent of a Constitutional right is not clear. But where a judicial opinion from the Supreme Court introduces a brand new right that was clearly not dreamed of by the Founders and not even seriously argued to exist in any prior generation, and which is unsupported by any straightforward reading of the actual text of the Constitution, one may be permitted to conclude that the political process has been usurped. (E.g., “[No] state [shall] deprive any person of life, liberty, or property, without due process of law,” and therefore suddenly in 1973 a Constitutional right to abortion exists? Really?) Such usurpations arouse deep indignation in my mind. Cases like Roe and Obergefell (and Lawrence before it) implicitly appeal to the “spirit” of the Constitution without any solid foundation in the text. But as for the “spirit” of the document, to judge from those cases, it would seem that judges are free to impose on the nation whatever rules seem to them best by reading those rules into the Constitution. For is there any rule that could not find justification in an appeal to such lofty and vague abstractions as “liberty,” “privacy,” and “equality”? It is especially clear that there is something deeply wrong when the rules thus adopted by the Supreme Court grate jarringly against the moral sensibilities of near-majorities of the People even at the moment they officially become “part of” the Constitution with publication of the Supreme Court opinion. These near-majorities might understandably perceive that the identity of their nation is being stolen from them, and this is one reason that this group might tend to resonate with the rhetoric of “Make America Great Again.”
The other side may have feelings similar to those of these near-majorities as they face the most conservative Supreme Court since the 1950s, but with this difference: the other side is seeking to have the historical status quo altered. Though, in common with many conservatives, I see much more in the historical status quo that should be “conserved” than do my liberal countrymen, I accord the People the right to form a New America in the image of their new liberal ideals–but let it be formed through the political process, which remains equally open to them under a conservative Supreme Court. Let the partisans of this New America convince their neighbors, representatives, and constituents of the rectitude of their vision, and not rely upon judicial fiat. Let her be conceived in the minds of the People, not those of five or more judges educated at Harvard and Yale. Let her birthplace be Congress, not the Supreme Court.
Justice Barret presumably will not engage in this most objectionable kind of judicial activism. She will instead leave such issues as abortion or gay rights to the People and the legislative process—which is where those issues have always previously been handled and is where they still belong.
Those are my views, so it is no surprise that I am happy with the appointment of Justice Barrett.
While Justice Barrett is not an ideological opponent to me, she is an ideological opponent to many, and at least one such writer is full of praise for her: in an article entitled “Amy Coney Barrett Deserves to Be on the Supreme Court,” Noah Feldman praises Barrett’s legal abilities and personal integrity. This means a lot, coming from a self-identified liberal. (“Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term.”) But he goes on to state, ungrudgingly, that “Barrett is highly qualified to serve on the Supreme Court.” He states this despite expecting “to disagree with many, maybe even most of her future votes and opinions.” He explains that, based on his experience with her when they were both clerking at the Supreme Court, “I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.” He proceeds to elaborate on just how brilliant she is, and then states that she is about as good a person as she is a legal thinker (my wording, not his).
He then states a portion of his political philosophy which is nuanced and, I think, true:
Some might argue that you should want your probable intellectual opponent on the court to be the weakest possible, to help you win. But the Supreme Court is not and should not be a battlefield of winner-take-all political or ideological division.
It would be naïve to deny that there is plenty of politics in constitutional interpretation. There are winners and losers every time the justices take a stance on an important issue of law. Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics. It follows that the social purpose of the Supreme Court is best served when justices on all sides of the issues make the strongest possible arguments, and do so in a way that facilitates debate and conversation.
In appreciative emulation of Mr. Feldman’s example, let me also go on record stating that Justice Ginsburg was a great Supreme Court Justice under these principles: clearly brilliant, collegial (her much remarked friendship with Scalia being a case in point), and, by my law school professor’s report, arguably the person on the Court most knowledgeable about the law of the United States. Some of her opinions are to me unconvincing–but they are uniformly as convincing as a formidable legal mind could make them, which is as it should be.
The kind of ungrudging appreciation of the merit of an ideological opponent demonstrated by Noah Feldman is desperately needed if our democracy is to continue functioning. It is especially important as the ideological common ground seems to shrink from under us that whatever common ground still exists be fully recognized and utilized.
We can all agree, I hope, that peace is preferable to strife, that it is good to be kind, and that we should serve our country to the best of our abilities and “with firmness in the right, as God gives us to see the right” (or, if not God, at least careful thought about our highest ideals). If we can agree on this much, and recognizing that views of “the right” will inevitably differ, then I believe it follows that one of the greatest services we can perform for our country is, with respect to the merits of those we disagree with, to celebrate them–or at least to recognize them–or failing even that, to refrain from denying them. With fear and trembling, I hope we may not fail in at least this latter low-bar duty–for if we deny any merit in “the other side,” and the trend continues unabated, then it seems to me that our democracy must collapse beneath our grandchildren’s feet as the Constitutional processes degenerate into unmitigated power grabs by warring factions. The antics of the Republicans in their inconsistent handling of two recent nominees is a harbinger of this degeneration unless we can reverse the trend towards polarization and rule by whichever of the warring factions is ascendant at a given moment. If the Democrats expand the Supreme Court, that would be a serious next step towards complete politicization of the judiciary. Rule by factions is the very outcome the Constitution is designed to prevent, including by the establishment of a judiciary independent from the legislative branch; but the essential warning of President Washington’s farewell address is that rule by factions is still inevitable, even under the Constitution, unless all the competing interests of the People are governed in a sufficient degree by a common civic virtue and a common patriotism potent enough to constitute them a People.