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Trump’s nomination of Judge Amy Coney Barrett to fill the late Ruth Bader Ginsburg’s seat has sent the Democrats into a hysteria, with many on the left worried about future decisions concerning contentious issues such as abortion and LGBTQ+ issues. Following Justices Thomas and Alito’s criticism of the legal reasoning behind Obergefell v. Hodges, which cemented the right to gay marriage across the country, the left is concerned that a Justice Barrett would jeopardize the future of this decision, among others. But this political divide over rulings on such controversial issues demonstrates exactly what has gone wrong with the Supreme Court over the past few decades, and highlights how many on the left fundamentally misunderstand the purpose of the judiciary in a democratic society.
The question at stake is not whether the Supreme Court should be a liberal court or a conservative court; it should be neither. Rather, the question is whether we want an activist court or an originalist court. The unbridled activism of the Supreme Court is what has led to such bitter and politically charged nomination battles, and a return of the Court to its appropriate place in our political system is crucial to ending its politicization. Over the past century, the Supreme Court has gone from one responsible for interpreting statutes to one responsible for creating them out of thin air, often grounded in little to no basis on actual text. And as the Court has usurped the power of the legislature, voters have demanded that Justices interpret the law in a manner favorable to their political leanings or reflective of the current views of society.
This idea that the Court should keep the Constitution and the laws up to date with modern times, that it should breathe new meaning into old texts, is fundamentally at odds with the correct purpose of the American judiciary. Pertaining to the Constitution specifically, we should keep in mind the words of the late Justice Antonin Scalia: “A Bill of Rights that means what the majority wants it to mean is worthless.” The court should not be in the business of interpreting the Constitution in a manner so as to satiate whatever the current popular opinion may be. Rather, its duty is to interpret the Constitution according to its original meaning, with its decisions grounded in the text and spirit of the document as opposed to external political considerations. The further the Supreme Court has strayed away from this responsibility, the more voters and politicians have decided to use the Court as the arena for their political battles, as opposed to settling them in the legislature.
Take the issue of abortion, for example. From a judicial standpoint, the question is not whether abortion should be legal or not. Rather, the question is, who gets to decide? When issues as controversial and contentious as abortion are determined by the judiciary through rulings with no basis in constitutional text, the ability to determine policy through the democratic process is stripped from the people and the legislature, and instead given to nine unelected judges. And what has this led to? Every time there is a Supreme Court opening, the abortion issue is a litmus test for both sides, which has led to increased polarization and politicization of the court. Ever since the legality of abortion became a judicial issue as opposed to a legislative one, voters and politicians have decided that the Supreme Court is the only way to have their preferred positions represented by the policies of the United States.
The problem with the Roe v. Wade decision, then, is not necessarily its outcome, but rather how that outcome was reached. In the decision, seven Justices decided that they would create a new right out of thin air, a right that is nowhere to be found in the text, spirit, or original meaning of the Constitution. This act of judicial supremacy is but a reflection of how the Court has turned the constitutional order on its head, and disregarded the separation of powers that has characterized our republic for over 240 years. The Supreme Court’s job is not to create new rights whenever society deems them necessary, but instead to protect those rights that can be derived from either the text and original meaning of the Constitution, or from historical precedent. But this fundamental principle was abandoned in Roe, as the Court interpreted the 14th Amendment outside of its original meaning and redefined it in a manner that would enable the Court to extract a right to abortion out of it.
If we as a society truly believe that abortion should be a constitutional right throughout the United States, we can use the amendment process to add this right to the Constitution legitimately. If an amendment seems implausible, then we can leave this issue to be determined by the democratic process at the state level. If 60% of Alabamians are pro-life, why should they not be able to pass laws within Alabama that reflect their values, just as left-leaning states are able to pass laws that reflect their respective values? The beauty of the federalist system in this country is that it recognizes regional differences in values and culture, and enables people in different regions to govern themselves under different laws that reflect the diverse beliefs of the American electorate. And when the Court system intervenes in contentious political issues to cut short the democratic process, it snuffs out the ability of Americans to discuss the merits of both sides of these issues, and strips from them the ability to decide through democratic choice the laws they wish to be governed under.
If every time a controversial issue arises, the Court hands down a one-size-fits-all ruling that preempts democratic choice, then what is the democratic process even for? If we are not a country in which the people can choose what laws they wish to live under, why not just abolish the legislature entirely and hand over the political direction of the country to the whims of the Supreme Court? We must realize that for far too long, we have asked the court to intervene in issues it has no business intervening in. If we feel that a law or a constitutional provision is out of date, it is up to us to seek change through the legislature. It is up to us to demand that our representatives correct whatever we feel is antiquated or inappropriate for the society in which we live today. But when we take these issues up to the Supreme Court, and give the court a blank check to mold the laws and the Constitution into whatever we want them to mean today, we are giving essentially unchecked political power to a body which is supposed to be apolitical, whose members are unelected and serve for life. And for nine people to have this much power in our political system is a threat to democracy, a rejection of the American ideal of popular sovereignty, and an affront to the separation of powers.
This is exactly why Amy Coney Barrett’s appointment to the Supreme Court is so important for reining in judicial supremacy and ending judicial activism. Barrett, throughout her legal career, has consistently proven herself to be an originalist judge in the mold of Antonin Scalia, one who would hold the plain and original meaning of texts above any partisan considerations. She understands that unless an issue is addressed in the Constitution or an existing statute, it is not one for the courts to decide, but rather the people and the legislatures that represent them. As such, Amy Coney Barrett is exactly what a Supreme Court Justice should be: objective, apolitical, and grounded to the original meaning of the Constitution.
If Amy Coney Barrett is confirmed to the Supreme Court, as it appears she will be, it is still unlikely that Roe v. Wade would be overturned. Even it were overturned, however, doing so would not criminalize abortion nationwide or entrench right-wing political objectives into judicial precedent. Rather, it would merely reflect the shift towards originalism, under which such issues are determined by state and national legislatures, and possibly by constitutional amendment, just as the framers of the Constitution envisioned and intended. And ultimately, this is the core difference between the left and the right on judicial philosophy: the left wants a leftist court that engages in left-wing policymaking, while the right simply wants an originalist court that engages in no policymaking. We don’t wish to use the judiciary to enforce our political positions across the nation. We just want a Court that is limited to its constitutional functions.
Those on the left who bitterly oppose Barrett’s appointment because she seemingly threatens rulings that have given them favorable policy outcomes must realize that the Court’s role in a republic is not to produce favorable policy outcomes. Its role is to interpret the law and the Constitution as written. And if the plain meaning of these texts leads to rulings that are contradictory to the current opinions of society, it is not the Court’s job to correct those texts, but rather the duty of those who wrote them in the first place: the legislators. Barrett certainly would not twist the text of the Constitution until she was able to extract an interpretation that was congruous to her own views or to those of society at large. And perhaps that makes her unpalatable to those on the left who wish to bypass the democratic process, who want the Supreme Court to cement their opinions into law by de facto amending the Constitution through judicial fiat. But this very sense of judicial restraint is exactly why Amy Coney Barrett is the Justice we need in an era of unchecked judicial authority.
Through an originalist judiciary, the Court would cede back power to the legislature, and return to the constitutional balance of power under which the Supreme Court is meant to be the least powerful of the three branches of government, only intervening when laws are clearly in conflict with the plain meaning of the Constitution. Those who have strong views on social issues would be free to engage in the democratic process with their fellow Americans, attempting to sway public opinion towards their beliefs and ultimately settling such issues at the state or legislative level. Our democracy was always meant to work freely, and with a Justice Barrett on the bench, we can help shift the Supreme Court in a direction under which our democracy is empowered to work freely again.
As a note to all readers of The Cornell Review, Election Day is on November 3rd, 2020. If you have not yet registered to vote, please follow the instructions in this link to do so. Voting is one of many ways to participate in our democratic republic.
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