In addition to broad discussions about the role that Amy Coney Barrett’s religious faith might play on her judging, her detractors have also focused on her body of work as a judge on the 7th Circuit Court of Appeals, where she has sat since her confirmation in 2017. A representative example of this is a recent article in Current Affairs by Nathan J. Robinson. With the tagline, “Her rulings reveal a judge who serves the interests of Trump, telemarketers, debt collectors, bureaucrats, and cops,” Robinson asserts that Judge Barrett should not be on the Supreme Court. But in his condemnation of Barrett’s votes or opinions in a number of cases, Robinson does not make a single reference to the statute or Constitutional provision that was at issue in the cases. Rather, he complains about the social outcome of the case, and imputes upon Barrett a judgment that the social outcome is her preference, rather than the legally compelled one.
This is because, like most liberal commentators, Robinson sees courts as agents of social change rather than finders of fact and adjudicators of discrete legal disputes. The only question that matters to Robinson is, as he puts it, “how would [Barrett] rule on issues that matter? Who would be helped or hurt by these rulings?” Note that he is unconcerned with the law that she would be interpreting, or how she applies the law to the facts before her. Rather, his only ostensible concern is the social policy that would flows from the decision. This is because he sees the role of the judge as a policy maker, not a disinterested arbiter of disagreements.
Unfortunately, many judges share that judicial philosophy (including present and past members of the U.S. Supreme Court), a refreshingly honest statement of which was made by another member of the 7th Circuit bench, Senior Judge Richard Posner, upon his retirement from full-time service in 2017. In an interview with the New York Times about his judging philosophy, Judge Posner said, “I pay very little attention to legal rules, statutes, constitutional provisions. . . . A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute?” Of course, one problem with such a judicial philosophy is that one man’s “sensible resolution” is another man’s irrational imposition. But the broader issue is that it this an express abdication of the proper role of a judge to apply the law to the facts before him, not to make social policy.
While judges are rarely so candid about approaching cases in this way, in the recent history of Supreme Court adjudication on major social policy disputes, this is the regnant philosophy. And it almost always cuts against Catholic faith and practice. For example, few if any scholars of the Constitution will defend the legal reasoning in Roe v. Wade even while strongly supporting the social policy that informs it and the outcome that obtains. This includes the late Justice Ruth Bader Ginsburg.
Two other seminal cases in the Court’s recent history that impose liberal social policy outside the scope of Constitutional provisions are Planned Parenthood v. Casey (the 1992 case affirming and strengthening the holding in Roe), and Obergefell v. Hodges (the 2015 case striking down state laws that defined marriage as between one man and one woman). Both of these decisions were written by Justice Anthony Kennedy, and neither made any serious reference to the Constitution, or even more general legal principles, in their sweeping announcement of social policy. Rather, they were completely driven by a desired social outcome.
In Casey, for example, Justice Kennedy said, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. . . . Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state.” Nothing about what might be “at the heart of” the United States Constitution, or about how its provisions are completely silent on the issue of abortion. Similarly, in Obergefell, Kennedy opined, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.” Anything about Constitutional provisions preventing states from defining marriage in any particular way? No. These decisions are not about law. They are about policy outcomes.
And because most liberal legal commentators embrace this judicial philosophy, judges like Barrett are not evaluated on how they interpret laws, or apply those laws to facts, but rather about the social outcomes that obtain or flow from their decisions. Nor are Constitutional or statutory provisions even examined in such criticisms. The only measure of the judge is policy outcomes. Robinson and those like him might have examined the law to ask how it could be changed so that a judge is not compelled to apply it the way she does. They might complain that it is not the judge but the law that is faulty. But rarely, if ever, seems to occur.
Take the Affordable Care Act, for example. Joe Biden never misses an opportunity to claim that the reason Barrett’s nomination is proceeding in an election year is that Republicans want to overturn the Act. And this echoes the Democratic Party line. Vice Presidential candidate, Kamala Harris, for example, has said that the nomination of Judge Barrett is part of a program to reverse the ACA and “overturn our right to make our own health care decisions.” And Senate Minority Leader Charles Schumer complains, “The American people should make no mistake—a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.”
Absent from any of these charges is any consideration that the ACA might be violative of the Constitution, or even that it matters if it is. From the left, it is never asked whether the ACA is a bad piece of legislation, or how it can be repaired to pass Constitutional scrutiny. Only its effects matter, not any legal foundation for it. Policy, not law, drives the criticism.
Thus, when a judge like Amy Coney Barrett explains that “[a] judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold,” she cuts against a broad swath of the judicial philosophy of American legal commentators and even courts. And her detractors never ask how the law or Constitution should be changed to effect the policy they desire. Rather, they condemn Judge Barrett for her heartless and “fundamentally cruel” view of the law, as extreme leftist Mark Joseph Stern put it in Slate.
But Barrett is correct, and her judicial philosophy is the only way that we can rely upon the stability and predictability of the law. In Robert Boldt’s play, “A Man For All Seasons,” about the life of St. Thomas More, More is challenged by his son-in-law William Roper when More says that he would give the devil the benefit of the law.
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
As a judge, rooted in the Catholic tradition, Prof. Barrett will wade through the thicket of the law to arrive at decisions that the law demands. Policy-making is for policy-makers; Judging is for judges.
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