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 Capital Note

Palantir’s Eye-Popping Rally

Welcome to the Capital Note, a newsletter about business, finance and economics. On the menu today: Palantir shares skyrocket, a giant of labor economics passes away, Slack in acquisition talks with Salesforce, and Yellen’s plans for Treasury-Fed cooperation. The Palantir Bump: Politics or Product? Palantir, ... Read More
The Capital Note

Palantir’s Eye-Popping Rally

Welcome to the Capital Note, a newsletter about business, finance and economics. On the menu today: Palantir shares skyrocket, a giant of labor economics passes away, Slack in acquisition talks with Salesforce, and Yellen’s plans for Treasury-Fed cooperation. The Palantir Bump: Politics or Product? Palantir, ... Read More
White House

Implications of the Flynn Pardon

President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the ... Read More
White House

Implications of the Flynn Pardon

President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the ... 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

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 Economy

The New York Times Sells Envy

A product always sure to sell, even on Thanksgiving, and especially amid a pandemic, is envy. So I can hardly blame New York Times columnist Farhad Manjoo for capitalizing on a bull market. Lamenting that the portfolios of America’s richest men and women have made a quicker recovery from the ... Read More
The Economy

The New York Times Sells Envy

A product always sure to sell, even on Thanksgiving, and especially amid a pandemic, is envy. So I can hardly blame New York Times columnist Farhad Manjoo for capitalizing on a bull market. Lamenting that the portfolios of America’s richest men and women have made a quicker recovery from the ... Read More
Politics & Policy

Welcoming the Old Guard

After a primary campaign riven by debates over radical policies championed by progressive factions within the Democratic Party -- and indeed a general election that saw many incumbent Democrats threatened or defeated because of voters’ uneasiness with progressivism -- the incoming administration and Congress ... Read More
Politics & Policy

Welcoming the Old Guard

After a primary campaign riven by debates over radical policies championed by progressive factions within the Democratic Party -- and indeed a general election that saw many incumbent Democrats threatened or defeated because of voters’ uneasiness with progressivism -- the incoming administration and Congress ... Read More
U.S.

Raise the Entrance Fees for Our National Parks

In my role as your go-to purveyor of unpopular opinions, I offer this: We should jack up the entrance fees for our national parks — a lot. One of the many disappointments of the Trump administration is that in spite of his DGAF posturing, Donald Trump has always been a slave to public opinion, which made his ... Read More
U.S.

Raise the Entrance Fees for Our National Parks

In my role as your go-to purveyor of unpopular opinions, I offer this: We should jack up the entrance fees for our national parks — a lot. One of the many disappointments of the Trump administration is that in spite of his DGAF posturing, Donald Trump has always been a slave to public opinion, which made his ... Read More