The
Supreme Court is not being honest with you
Justice Amy Coney
Barrett appears to be quite unfamiliar with her own judicial record, and that
of her colleagues.
By Ian Millhiser Feb
19, 2022, 8:00am EST
Justice Amy Coney Barrett delivered a speech this week that
echoed decades of conservative talking points about the proper, limited role of
judges in a democracy. But that restrained vision is completely divorced from
Barrett’s own conduct as a conservative justice — not to mention that of the
Republican majority she consistently votes with.
Her remarks, which were offered at an academic symposium hosted
by Notre Dame Law School, were grounded in the rhetoric of judicial restraint
that Republican politicians have used to talk about the proper role of the
courts at least as far
back as Richard Nixon.
The Court’s youngest justice drew a distinction between
“pragmatists,” judges who “tend to favor broader judicial discretion,” and
“formalists,” who “tend to seek constraints on judicial discretion” and “favor
methods of constitutional interpretation that demand close adherence to the
constitutional text, and to history and tradition.” She placed herself in the
latter camp.
As a justice, however, Barrett has behaved as an unapologetic
pragmatist. Along with the Court’s other
Republican appointees, Barrett supports
flexible legal doctrines that give
her Court maximal discretion to veto federal regulations that a majority of the
justices disagree with — especially regulations promoting public health or protecting the
environment. And she’s joined her fellow Republican justices in imposing
novel limits on the Voting Rights Act that appear nowhere
in the law’s text.
The rhetoric of judicial restraint is potent, so it is
understandable why Barrett wants to tap into that potency. Formalist rhetoric
enables the justices to claim that they didn’t roll back
voting rights or strike down a
key prong of President Joe Biden’s efforts to promote vaccination because they
prefer weaker voting laws and a flaccid public health system — they simply did what
the law requires.
And Barrett is hardly the only justice to engage in such
rhetoric. Justice Neil Gorsuch recently published an
entire book claiming that judges should rely almost exclusively on the
text of a statute or constitutional provision while interpreting it. Justice
Clarence Thomas frequently calls for radical
shifts in the law, claiming they are necessary to restore the “original
understanding” of the Constitution. Even Justice Samuel Alito, the
Court’s most partisan
justice, recently attributed his new, entirely atextual limits on the
Voting Rights Act to having taken “a fresh look at
the statutory text.”
The problem with this rhetoric, in short, is that it bears no
resemblance whatsoever to the current Supreme Court’s actual behavior.
(Continues at link above)
It's interesting because it seems like supreme court justices are theoretically supposed to be nonpartisan and only interpret the law without adding their own beliefs. Obviously, this hasn't been the case, historically. Maybe this is partly human nature. We all have our biases, and it makes sense this would bleed into whatever we do, even if that's making decisions that effect entire nations. We see what we want to see and we ignore what we don't. This can be an issue when attempting to interpret anything, whether it's analyzing scientific evidence, religious texts, or the constitution.
ReplyDeleteIt's only "activism" when the other party does it, evidently.
ReplyDeleteThey are appointed to uphold the constitution. The party of the president that nominated them should not come first.
ReplyDelete