The Corner

Media

Another Incoherent Critique of Judge Barrett

Supreme Court nominee Judge Amy Coney Barrett speaks during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., October 13, 2020. (Brendan Smialowski/Reuters)

I suppose it represents a minor victory that even the most committed of judicial consequentialists feels obliged to disclaim their consequentialism. But it sure makes reading them difficult. At Slate, Dahlia Lithwick begins her most recent essay by insisting that she is not arguing that Supreme Court justices should make up the law in order to yield outcomes they prefer. By the end of it, however, she is arguing exactly that. Any reader who makes it that far is likely to come out with whiplash.

Amy Coney Barrett’s record, Lithwick writes,

has proven to be a perfectly coherent and intellectually rigorous effort to adhere to an originalist’s view of the world.

And yet in Lithwick’s view this is a bad thing, because, unlike Ruth Bader Ginsburg, Barrett seems unwilling to alter laws that she believes were badly written. Lithwick contends that “it is certainly not Barrett’s job to fix problems.” But, having said that, she praises Ginsburg for . . . well, for fixing problems. Ginsburg’s “entire worldview,” Lithwick writes, “was predicated on the idea that the Constitution and statutory language were necessarily imperfect.” Moreover, Ginsburg’s aim as a Supreme Court justice was  to address that imperfection:

If there is a throughline in Ginsburg’s constitutional approach, it was an effort to make invisible people visible to her colleagues at the court and, if that failed, to the country and the world. Whether it was male caregivers trying to benefit from tax laws, or female cadets at Virginia Military Institute, or Lilly Ledbetter being denied a remedy for persistent, systemic pay discrimination, or the workers of Walmart, or the employees of Hobby Lobby, or minority voters in the South, or immigrants, prisoners, LGBTQ Americans, or Milwaukee voters vainly attempting to vote during a pandemic, Ginsburg saw them, and understood that her actions would influence their lives.

Unwilling to pay the price for such an admission, Lithwick quickly adds:

This isn’t “judicial activism” or “legislating from the bench,” but rather a lifelong effort to broaden the notion of equality to include marginalized, powerless, forgotten, and invisible groups.

But, obviously, this is “legislating from the bench.” Amending insufficient or unclear statutory text is the role of a legislator or of a participant in the constitutional amendment process, not of a judge. How, one wonders, can it possibly be true that it is “certainly not Barrett’s job to fix problems” and that Ginsburg was admirable for fixing problems? Could it be that Ginsburg wasn’t doing her job?

Eventually, Lithwick’s piece collapses in on itself in a hail of sentiment, indignation, and incoherence. Having run through the stories of some sympathetic characters who have been wronged by the judicial branch’s textualist “heartlessness,” the final word Lithwick writes is “consequences.” At least her conclusion is honest.

Most Popular

Another Pollster Sees a Trump Win

The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, ... Read More

Another Pollster Sees a Trump Win

The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, ... Read More
Media

About That ‘Uncoverable’ Biden Story

Journalists claim they can’t cover the New York Post’s Hunter Biden email scoop because the underlying evidence has yet to been verified. Also, they won’t look for any verifying evidence because there isn’t enough evidence. It’s quite the conundrum. Because other than the now-corroborated emails, ... Read More
Media

About That ‘Uncoverable’ Biden Story

Journalists claim they can’t cover the New York Post’s Hunter Biden email scoop because the underlying evidence has yet to been verified. Also, they won’t look for any verifying evidence because there isn’t enough evidence. It’s quite the conundrum. Because other than the now-corroborated emails, ... Read More

Hunter Biden on Tape?

In a newly released recording, a man purported to be Hunter Biden is heard rambling about (a) his legal representation of Patrick Ho, a convicted former Hong Kong official he refers to as “the f***ing spy chief of China”; (b) his business dealings with Ye Jianming, the corrupt Chinese high roller, whom Hunter ... Read More

Hunter Biden on Tape?

In a newly released recording, a man purported to be Hunter Biden is heard rambling about (a) his legal representation of Patrick Ho, a convicted former Hong Kong official he refers to as “the f***ing spy chief of China”; (b) his business dealings with Ye Jianming, the corrupt Chinese high roller, whom Hunter ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
Elections

Hell, No

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National Review editorial ... Read More
Elections

Hell, No

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National Review editorial ... Read More
Music

Stevie Nicks, Like Springsteen, Preaches and Preens

In the 1970s, Stevie Nicks and Bruce Springsteen made impressions on pop-music culture with romantic rock landmarks, Fleetwood Mac’s Rumours album and Springsteen’s Born to Run. But their new 2020 releases, Nicks’s single “Show Them the Way” and Springsteen’s Letter to You film and album, make the ... Read More
Music

Stevie Nicks, Like Springsteen, Preaches and Preens

In the 1970s, Stevie Nicks and Bruce Springsteen made impressions on pop-music culture with romantic rock landmarks, Fleetwood Mac’s Rumours album and Springsteen’s Born to Run. But their new 2020 releases, Nicks’s single “Show Them the Way” and Springsteen’s Letter to You film and album, make the ... Read More
Elections

Vote Your Conscience

At the 2016 Republican convention, Senator Ted Cruz spoke a controversial phrase: “vote your conscience.” I think about this phrase, this idea, fairly often. I’m not one to give advice on voting (or much else). But when asked for advice, I usually say, “Vote your conscience.” Sweet conscience! One of ... Read More
Elections

Vote Your Conscience

At the 2016 Republican convention, Senator Ted Cruz spoke a controversial phrase: “vote your conscience.” I think about this phrase, this idea, fairly often. I’m not one to give advice on voting (or much else). But when asked for advice, I usually say, “Vote your conscience.” Sweet conscience! One of ... Read More