Some questions for Judge Amy Coney Barrett
I strongly disagreed with Mitch McConnell’s refusal to hold hearings on the nomination of Merrick Garland to the Supreme Court in 2016. I believed it would have been in the country’s best interests for a Republican-controlled Senate to work with President Obama to find a suitable, cross-partisan nominee. But Senator McConnell had other plans.
In an interview with Chris Wallace, he said at the time:
“We think the important principle — in the middle of this presidential election, which is raging — is that the American people need to weigh in and decide who’s going to make this decision.”
Having succeeded in his gambit, Senator McConnell should be required by conscience and patriotic duty to adhere to that same principle now. The person who nominates Justice Ruth Bader Ginsburg’s successor should be the winner of this year’s presidential election.
That said, it appears highly likely that Judge Amy Coney Barrett will receive a Senate hearing as President Trump’s nominee and will be confirmed. If conducted well, the Senate Judiciary Committee hearing could offer a meaningful chance for the American people to learn about the fundamental jurisprudential views of an incoming Justice. The hearing (at least portions of it) will likely be seen by millions of Americans, and I believe that Senators on the committee should use that opportunity to ask questions about Judge Barrett’s views on the basic theoretical principles that support our constitutional system.
Understandably, most Americans have never studied our law or thought about its deepest roots. Everyone alive today was born into a legal system that has already been chugging along for generations, so it’s not surprising that we don’t pause to ask ourselves: what is at the bottom of this whole thing, anyway?
The questions in this post are meant to get at that type of fundamental inquiry. If members of the Senate Judiciary Committee were to pose some of these questions, we could learn a lot about Judge Barrett’s judicial philosophy, and the American people could better appreciate that our constitutional law inescapably contains vague and contested concepts. As Justice Holmes famously put it:
“The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man.”
Before I get to the questions, I want to say something about my approach to the nominee. I have never met Judge Barrett, but based on her writings and speeches, she seems to have thoughtful and sincere beliefs about our Constitution, about the role of a judge, and about the very nature of law. In this post, I try to engage respectfully with her ideas. People who oppose her nomination might construe my engagement as acquiescence, but it’s not. If we don’t engage with Judge Barrett seriously and in good faith, we won’t understand why roughly half of the country is cheering her nomination. Additionally, for attorneys who might practice before a future Justice Barrett, it would be extremely helpful to learn about her deepest jurisprudential commitments.
So, here are some questions for Judge Amy Coney Barrett:
Re: Judicial Philosophy
Q1. When you accepted this nomination, you invoked Justice Scalia and said, “His judicial philosophy is mine too: A judge must apply the law as written.”
You have acknowledged that “applying the law as written” can be incredibly complicated, and that reasonable people can disagree about what “the law as written” means. Do you ever worry that phrasing things as you did in the Rose Garden (“just follow the law as written”) can give non-lawyers a mistaken impression that the legal text — whether it be the Constitution or a statute — always provides clear and singularly correct answers to the most difficult legal questions?
Q2. In a recent article, you wrote that “textualist” judges don’t always agree about what the words in a text mean, and that “originalist” judges don’t always agree about what the original public meaning of a constitutional provision is.
In your view, what explains such disagreement? Doesn’t the existence of such disagreement demonstrate that people can sincerely pledge to “apply the law as written” and still reach different conclusions in a particular case? Given all this, do you believe that the American people would be better served by more frequent and open acknowledgment by the Supreme Court that there can be reasonable disagreement about the hardest cases?
Q3. You have written that “to be bound by written law” means “that the meaning of the law is fixed when it is written.” You have also said that “originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.”
How do those principles apply to words that inherently lack a fixed meaning, even for the public that originally ratified them? (For example “the freedom of speech” protected by the First Amendment.) Do you believe that our Constitution uses some words and phrases whose original public meanings were understood at the time to be flexible or accretive? Can you give some examples?
(Some potential examples: “legislative Power,” “executive Power,” “judicial Power,” “unreasonable,” “liberty,” “property,” “due process,” “cruel and unusual,” and “equal protection.”)
Q4. You have also written that “construing language in context does require judgment.” In your view, what is the difference between exercising judgment and applying a deeply held policy view?
Q5. Justice Scalia once wrote that the phrase “the freedom of speech” in the First Amendment is an example of an “indeterminate” text. Given the indeterminate nature of that phrase, do you believe it has a single authoritative original public meaning? For example, do you believe that the Court’s holdings in Buckley v. Valeo were required by the original public meaning of the First Amendment?
Q6. Some leading scholars (e.g., Professor Solum) believe that there is a difference between “interpretation” (ascertaining a text’s semantic meaning) and “construction” (determining how a text’s semantic meaning is given legal effect in the real world). Do you agree that there is a difference between interpretation and construction? Can you identify thinkers whose views on this topic align with your own?
Q7. Do you believe that there can be a difference between what “the law” requires and what would be “substantively just” in a given case?
Q8. Has the United States Constitution ever contained text that produced substantively unjust results in the real world? For example, was the three-fifths clause substantively unjust?
When a judge confronts a legal text that would produce a substantively unjust result in the real world, what should she do? Can you identify any cases in which you felt that the law required a result that was substantively unjust in some way?
Re: the Sovereignty of the American People
Q9. Do you believe that the ultimate legitimacy of the United States Constitution rests on a foundation of collective popular sovereignty? What is your conception of “popular sovereignty”? Do you believe that the creation of our Constitution was the act of a sovereign people promulgating their own fundamental law?
Q10. Suppose our Constitution did not contain Article V or any other provision that enables the proposal and ratification of constitutional amendments. Would an un-amendable Constitution be compatible with your conception of popular sovereignty?
Q11. Do you believe that popular sovereignty is theoretically distinct from the particular governmental institutions and procedures that are framed by our Constitution’s text? Put another way, is the authority of the sovereign people theoretically prior to the authority of the Constitution?
Q12. Is there a difference between the “popular sovereignty” that undergirds our Constitution and the “majority rule” that undergirds traditional democratic decision making?
Q13. Is representative self-government synonymous with popular sovereignty, or is it one of many devices that the framers adopted to preserve and promote popular sovereignty?
Q14. Is the Bill of Rights another device that the framers adopted to preserve and promote popular sovereignty? What about federalism? What about the separation of powers?
Q15. Do you believe that the judiciary has a role to play in ensuring that the rules and institutional procedures involved in representative self-government bear some meaningful connection to the actual will of the sovereign people?
Q16. When you approach the Constitution’s text, what do you make of the fact that many of its provisions were adopted by a ratifying public that categorically excluded Black people and women? Does this historical fact create a substantive mismatch between the collective popular sovereign that existed in the 18th century and the collective popular sovereign that lives today? Does that mismatch have any bearing on the legitimacy of applying “original public meaning” to today’s People?
Q17. For the Constitution to possess legitimate authority in a given historical time period, do you believe that the people of that era, in their collective sovereign capacity, must somehow manifest ongoing assent to its terms?
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Okay. That’s all for now!
If you’re interested in digging in, here are links to some key articles by Judge Barrett:
Assorted Canards of Contemporary Legal Analysis: Redux (2019)
Countering the Majoritarian Difficulty (2017)
Originalism and Stare Decisis (2017)
Congressional Originalism (2016)