Doing Justice To The Barrett Nomination

Monday, September 28, 2020
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To the glee of his conservative base and to the consternation of his progressive opponents, President Trump has nominated Amy Coney Barrett for a seat on the United States Supreme Court. My own preference, which was shared by others, such as Peggy Noonan, was to delay a vote on the nominee until after the election. But the course of events has moved rapidly in the other direction, and a no-holds-barred nomination fight is now upon us. In earlier times, Judge Barrett’s consistent level of high performance would have led to confirmation by acclamation under the now-disregarded practice of evaluating a judge’s legal understanding and technical competence, independent of her political orientation. But these are not normal times. Indeed, the current fight resembles the appointment of John Marshall, our greatest chief justice, to the Supreme Court by President John Adams on March 3, 1801, the day before Thomas Jefferson was sworn in as president.

Senator Mitch McConnell’s prompt announcement that the president would move forward with the nomination rests on the fact that McConnell had sufficient votes in his pocket. McConnell and Trump may think that they will gain a powerful political advantage by forcing the Democrats into a two-pronged strategy of massive resistance. The first is an all-out attack on Barrett for her religious associations, most notably her membership in People of Praise, a predominantly Roman Catholic faith community formed in 1971. The second is an institutional challenge, represented by Senator Elizabeth Warren’s adamant refusal to confirm a new Supreme Court justice until after inauguration on January 20, 2021. The Democratic playbook threatens to pack the Supreme Court if Barrett is confirmed, or to limit the appellate jurisdiction of the Supreme Court so that it could not review Biden administration proposals, like implementing the Green New Deal or increasing the rights and power of unions. Progressives by and large are fearful of judicial intervention by a conservative court that would challenge their culture war victories, upset their efforts to reshape the economy from top to bottom, and remake the regulatory world to be friendlier to business.

The political landscape is further confused because progressives have switched sides on judicial power. Having supported decisions like Roe v. Wade on abortion and Obergefell v. Hodges on gay marriage, progressives now believe that a conservative court should not be allowed to meddle in matters of personal autonomy and intimacy. Ironically, on this issue there is, at the moment, no definitive left/right split. The recent six-three majority decision in Bostock v. Clayton County, a weird textualist argument written by Justice Neil Gorsuch and joined by Chief Justice John Roberts, read into Title VII of the Civil Rights Act of 1964 the protection of transgender rights that had never been contemplated in 1964.

Writing in the Atlantic, Emma Green insists that “One of the watchwords of the conservative legal movement is judicial restraint—an allergy to what adherents describe as judicial activism that leads judges beyond the text of a statute or the Constitution to a preferred policy outcome.” This bald proposition oversimplifies the intellectual landscape. The Federalist Society hosts both conservative and libertarian thinkers. The former may in some cases at least think in terms of maximal forms of judicial restraint, but the latter clearly do not. The conservative commitment to judicial restraint is not straightforward in either constitutional or administrative law. Abiding questions ask how much deference courts should pay to statutes challenged under the Constitution, or to administrative regulations challenged under the Administrative Procedure Act. On these pivotal issues, there is a deep tension between the original public meaning of the text and judicial restraint.

Constitutional protections of political speech, religious liberty, and private property are often stated in very broad terms in the Constitution: “Congress shall make no law abridging the freedom of speech.” Does that mean that writing or acting is not covered by the amendment, or that fraud, coercion, and defamation get a free pass if done orally? Clearly a lot of interpretive work has to be done to determine both the scope of the protection and the exceptions to it. That same exercise has to be repeated with the protection of the “free exercise of religion” or with the taking of private property. Accordingly, the justice who, in the name of judicial restraint, impresses on these fundamental guarantees some artificially narrow reading is doing violence to the constitutional text and the original intention behind it. The text is the anchor that sets the inquiry in motion. A keen knowledge of background principles of common law and political theory are the minimum tools to complete the job.

One notable blunder of this sort was penned by Justice Antonin Scalia in his unfortunate decision in Employment Division, Oregon v. Smith (1990). Scalia wrongly held that the legislature gave sufficient protection to religious liberty because it did not single out religious practices—in this case the ritual use of peyote—for differential burdens. His decision was widely criticized for backing off the greater protection which, under the “free exercise” clause of the First Amendment, required government to make reasonable accommodations that protected religious liberties unless there was a strong government interest that justified a restriction (but one nowhere stated in the Constitution). Indeed, Kelo v. City of New London (2005), perhaps the most controversial property rights decision of the twenty-first century, was commonly attacked as an unprincipled activist decision when Justice John Paul Stevens virtually read the “public use” limitation out of the takings clause by showing extreme deference to state legislation that takes private property for general economic development.

An uncompromising system of judicial deference leads to an underprotection of property rights, as I argued in a debate with then-judge Scalia back in 1984. Working out these trade-offs leads to many difficult decisions. As a general matter, commentators should avoid overclaiming that the constitutional text is self-contained. Just that mistake is made by former senator Jim DeMint when he writes that “We conservatives are united in supporting only those judges who strictly interpret the Constitution as it is written and who won’t legislate from the bench.”

It is certainly appropriate to be cautious about the latter, but it is dangerous to assume that anything which goes beyond the strict interpretation of the text is illegitimate. On this question DeMint is not alone. Entire bodies of law are vexing problems today, including those that deal with the ability of Congress or the states to override explicit constitutional protections to regulate health, safety, morals, and the general welfare in the name of the police power, or the extent to which government officials are entitled to some form of official immunity. Judge Barrett, if confirmed, will have to face the same difficult choices faced by conservative and liberal justices alike.

A similar problem arises in administrative law where judges contemplate the proper deference given to administrative agency decisions. It is worth remembering that then-judge Ruth Bader Ginsburg wrote an unsound opinion in Natural Resources Defense Council v. Gorsuch (1982), which showed little deference to the Environmental Protection Agency’s use of the so-called “bubble concept” to allow a given plant to alter emissions through different smokestacks without having to file for a new EPA permit. Her decision was overturned two years later by Justice Stevens in the most important administrative law case to date, Chevron v. NRDC (1984), which afforded deference to the agency and allowed the Reagan administration to back off the aggressive position of the Carter administration. No one, thankfully, thought to attack this decision in Ginsburg’s Supreme Court confirmation hearing, even though the best reading of the statutory scheme supported the Reagan APA on ordinary textual grounds, wholly without deference.

Ironically, once again, a belief for or against administrative deference does not line up easily with liberal or conservative thought. Indeed, Justice Scalia showed undue deference to the Department of Labor in Auer v. Robbins (1997) when it allowed police sergeants and lieutenants to receive overtime benefits under the Fair Labor Standards Act on the ground that they were not exempt supervisory employees. Auer was cut back by Justice Elena Kagan in Kisor v. Wilkie (2019), a case concerned with an esoteric question of when certain war-related disabilities began.

The important lesson from these cases is that the correct way to examine a Supreme Court nominee is to form some estimation of her general intellectual ability and judicial seriousness. It is not to play gotcha, flyspecking each of her many opinions or extrajudicial statements in order to sink her nomination. Democrats are perfectly entitled to vote “no” on the Barrett nomination because of their staunch opposition to her perceived conservative philosophy. But they are not entitled to launch a full-scale attack on every aspect of her personal and professional behavior to that same end. We need desperately to restore civility to a broken confirmation process.


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