Politics & Policy

Amy Coney Barrett and Judicial Consequentialism

At the Supreme Court building in Washington, D.C. (Willard/Getty Images)
It may be politically convenient to make results-based arguments about the Court, but it’s also deeply damaging to our constitutional order and polity.

To be nominated to the Supreme Court is both a great honor and a terrifying prospect — the latter being particularly relevant if you happen to be nominated by a Republican president. Amy Coney Barrett, who already faced attacks and insinuations related to her Catholic faith during her confirmation hearing to the Seventh Circuit, has learned this in short order.

Already, Barrett is being critiqued, again, as a nominee because of her devout Catholicism. Senator Mazie Hirono — a member of the Senate Judiciary Committee best known for her embarrassing assertion that Brett Kavanaugh could not be afforded the presumption of innocence because of her own presumption that he would vote to overturn Roe v. Wade — has insisted that Barrett’s religious views will not be off-limits when she comes before the Judiciary Committee later this month. “Why should we say you get a lifetime appointment so that you can reflect your ideological agenda in your decision making?” asked Hirono.

Certified anti-racist Dr. Ibram X. Kendi has even gone so far as to attack Barrett for the two black children she has adopted from Haiti. Kendi suggests that Barrett’s decision to bring two more kids into the family in addition to the five she has birthed may not have been a selfless act of love, but an effort to use “them as props in their lifelong pictures of denial, while cutting the biological parents of these children out of the picture of humanity.” He went on to backtrack somewhat, saying “whether this is Barrett or not is not the point.” His point was similar to Hirono’s: The presumption of innocence of racism should not be granted to people such as Barrett or Kavanaugh.

While the attacks on Barrett’s faith and family have been both galling and appalling, and thus more likely to be highlighted by her backers, it is the attacks on her record that are perhaps even more concerning for the future of the judiciary. While Republicans generally appoint jurists who interpret the Constitution according to the plain or original public meaning of its text, Democrats favor appointees who believe in a “living” or “evolving” Constitution. That is, one that can allow or prohibit whatever they want it to allow or prohibit. This method of interpretation is the natural result of judicial consequentialism on the left, or the belief that the law and Constitution should be interpreted not as it is, but as the Democrats believe it should read to fit their vision of a better society.

Nathan J. Robinson summed up this view of the Constitution best for Current Affairs, writing that:

One question alone matters to me: what effects would her [Barrett’s] presence of the Supreme Court have? In other words: how would she rule on issues that matter? Who would be helped or hurt by these rulings? The most important criteria in evaluating a potential justice are their stated values and their prior record, because these are the best evidence we have with which to speculate about what they would do if placed on the nation’s highest court. 

He goes on to predict that:

She is likely to issue rulings that cause significant needless harm to innocent people and make the country a more unjust place, with rulings that erode the rights of workers, immigrants, criminal defendants, and, of course, those who need abortions. 

No one wants to cause “significant needless harm to innocent people” or “make the country a more unjust place.” But it is Congress’s job to write laws — within the boundaries set by the Constitution — that prevent harm from befalling American citizens and make the country more just. It is the Supreme Court’s job only to make sure that those laws fall within those boundaries. If the nine justices on the Court were to all adopt Robinson’s view of the judiciary, we may as well not only abolish the Senate but the House too, and formalize the Court’s role as a super legislature.

Take the example of Roe v. Wade. Robinson decries the plight of “those who need abortions.” While all pro-lifers would be more than willing to debate whether almost any American “need abortions,” members of the conservative legal movement do not want to overturn Roe v. Wade solely because of their belief that abortion results in the termination of innocent life, but also because regardless of how long you may search, there is no right to abort your child to be found in the Constitution. Even Laurence Tribe, no friend to pro-lifers, has acknowledged that the legal reasoning in Roe was flawed, saying “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Moreover, while Robinson is willing to come right out and embrace judicial consequentialism, the entirety of the Democratic Caucus in the Senate is willing to do so implicitly. Minority Leader Chuck Schumer warned that “a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act (ACA) and eliminate protections for millions of Americans with pre-existing conditions” and that Barrett would “turn back the clock on women’s rights and a woman’s right to choose, workers’ rights, voting rights, civil rights, LGBTQ rights, environmental protections and more.” Senator Richard Blumenthal has asserted that “Judge Barrett’s views would harm real lives — real people — in real ways, from children with pre-existing conditions to women who just want to be able to decide when and how to have a family.” Hirono announced that she would oppose Barrett because “she will vote to strike down the Affordable Care Act” and “has a long history of being anti-choice.”

The claim that the Affordable Care Act will be thrown out if Barrett is confirmed is a dubious one, and the opinion that she would harm the lives of Americans is just that: an opinion. More importantly though, they are consequentialist claims that have no place in determining whether Barrett should be elevated. Democrats tell us about the outcomes they want and warn that Barrett’s confirmation would lead to opposite ones, but they don’t even try to explain why those outcomes are the right ones, constitutionally. It may be politically convenient to make results-based arguments about the Court, but it’s also deeply damaging to our constitutional order and polity. Those paying close attention to her confirmation hearings should be alarmed not only by the vicious personal attacks sure to be lobbed at her and her loved ones, but also by the consequentialist attacks on her judicial philosophy.

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