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

The Rural Way

Almost every national Election Night reveals the same old red/blue map. The country geographically is a sea of red. The coasts and small areas along the southern border and around the Great Lakes remain blue atolls. Yet when the maps are recalibrated for population rather than area, the blue areas blow up, ... Read More

The Rural Way

Almost every national Election Night reveals the same old red/blue map. The country geographically is a sea of red. The coasts and small areas along the southern border and around the Great Lakes remain blue atolls. Yet when the maps are recalibrated for population rather than area, the blue areas blow up, ... Read More
Elections

It’s Only ‘Free and Fair’ When We Win

Indeed, this is astonishing: https://twitter.com/felixsalmon/status/1331295033325219840 In 2018, after two years of media spinning tales about shady Russian infiltrators in our government, 67 percent of Democrats believed that Putin’s gremlins had bored into our voting machines and altered the outcome ... Read More
Elections

It’s Only ‘Free and Fair’ When We Win

Indeed, this is astonishing: https://twitter.com/felixsalmon/status/1331295033325219840 In 2018, after two years of media spinning tales about shady Russian infiltrators in our government, 67 percent of Democrats believed that Putin’s gremlins had bored into our voting machines and altered the outcome ... Read More

The Coup That Wasn’t

Donald Trump is not done challenging the results of the 2020 election in court, and he is by no means done complaining. But there will be no “coup.” Any prospect of Trump remaining in office without a legal process that declares him the recipient of more legal votes in the decisive states has now evaporated. ... Read More

The Coup That Wasn’t

Donald Trump is not done challenging the results of the 2020 election in court, and he is by no means done complaining. But there will be no “coup.” Any prospect of Trump remaining in office without a legal process that declares him the recipient of more legal votes in the decisive states has now evaporated. ... Read More
Books

Jordan Peterson v. the Publishing Mob

Staff at Penguin Random House Canada have “confronted management” about the decision to publish Jordan Peterson’s book in an “emotional town hall,” Vice reports. Peterson’s Beyond Order: 12 More Rules for Life will be released in March 2021. Apparently, one “junior employee who is a member of the ... Read More
Books

Jordan Peterson v. the Publishing Mob

Staff at Penguin Random House Canada have “confronted management” about the decision to publish Jordan Peterson’s book in an “emotional town hall,” Vice reports. Peterson’s Beyond Order: 12 More Rules for Life will be released in March 2021. Apparently, one “junior employee who is a member of the ... Read More
Elections

To ‘Steal’ an Election

Dan has a good article on the homepage, the main point of which is that the system worked, since Trump’s efforts to reverse the election failed. Certainly I agree with him about that. But he also finds charges that Trump tried to “steal” the election “overheated.” Since I made such a claim myself, I ... Read More
Elections

To ‘Steal’ an Election

Dan has a good article on the homepage, the main point of which is that the system worked, since Trump’s efforts to reverse the election failed. Certainly I agree with him about that. But he also finds charges that Trump tried to “steal” the election “overheated.” Since I made such a claim myself, I ... Read More