ACB - "Countering the Majoritarian Difficulty"

I encourage everyone, supporter or opponent of confirming ACB, to read this. It will give you insight into her thinking. For example, on Chief Justice Roberts on upholding the ACA:

"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."

And on originalism:

"The Constitution’s original public meaning is important not because adhering to it limits judicial discretion, but because it is the law. And because it is the law, judges must be faithful to it."

https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2330&context=law_faculty_scholarship

 

I am busy the rest of the evening but I'll try to do something tomorrow.

 

Again, I would encourage everyone to read the article. It doesn't take all that long, maybe 30 minutes or so. It brought back how much I enjoyed reading a book when I took a business law class in college about major SCOTUS decisions. It was fun to have to stop now and then to look up the meaning of a term that I don't normally encounter. Anywho, here are some of my highlights in the article as I read it -

The article is Amy Coney Barrett's(ACB hereafter) review of a book by Randy E. Barnett, published in 2016, entitled Our Republican Constitution: Securing the Liberty and Sovereignty of We The People. The argument Barnett addresses in his book is whether the foundation of the U.S. Constitution rests on individual sovereignty or collective popular sovereignty. As ACB put it - "If the People as a body are sovereign and the Constitution is designed to facilitate democratic self governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, legislation does not represent the sovereign will but rather the work product of government officials who serve as the agents of individual sovereigns."

Barnett's view of the Constitution is that "elected representatives serve to secure the natural rights of the individual sovereigns who comprise "We the People," not to carry out the mandate of the majority that voted them into office" and that legislation does not carry a presumption of legitimacy because it has majority support."

ACB points out that legislative errors are easier to correct than errors by the Supreme Court -

"Deferential judicial review of run-of-the-mill legislation is consistent with the reality that the harm inflicted by the Supreme Court’s erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute. The Supreme Court’s constitutional mistakes are extremely difficult to correct; one can hope only for a change of heart, a change of personnel, or a change by constitutional amendment. By contrast, it is feasible, even if difficult, to repeal or amend bad statutes, and both Congress and state legislatures do it with varying levels of frequency. At the state level, moreover, the harm of an ill-advised statute is regionally confined. Even if one state legislature makes a mistake, the other forty-nine remain free to choose a different course. A Supreme Court constitutional error, however, applies nationwide."

ACB points out that courts and legislatures "are both capable of doing good, and they are both capable of doing harm."

Now to the crux of the matter of what ACB has written(from which I will quote extensively) that will probably be the emphasis of attacks by ACB's opponents - the Affordable Care Act and originalism:

"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.

...

"If the majority did not enact a “tax,” interpreting the statute to impose a tax lacks democratic legitimacy."

...

And then ACB wrote about originalism and judicial restraint -

"...it is worth considering why they might misunderstand the concept. It may be because they consider themselves originalists but misunderstand originalism.

Originalism is associated with judicial restraint in the popular consciousness because it emerged in the 1980s as a conservative response to the perceived activism of the Warren and Burger Courts. Originalists insisted that the Court needed to be reined in so that the democratic process could function. They characterized originalism as a mechanism for stopping the minority of Supreme Court justices (and the elites who supported them) from imposing their will on the American majority. Originalism’s ability to restrain judges was trumpeted as its chief virtue. It “was thought to limit the discretion of the judge” and to promote “judicial deference to legislative majorities.”

Originalists have refined their arguments in the intervening years, however, and they have abandoned the claim that one should be an originalist because originalism produces more restrained judges. Originalism has shifted from being a theory about how judges should decide cases to a theory about what counts as valid, enforceable law. The Constitution’s original public meaning is important not because adhering to it limits judicial discretion, but because it is the law. And because it is the law, judges must be faithful to it.(emphasis mine - KenH) As Keith Whittington has explained, “The new originalism does not require judges to get out of the way of legislatures. It requires judges to uphold the original Constitution—nothing more, but also nothing less.”

The measure of a court, then, is its fidelity to the original public meaning, which serves as a constraint upon judicial decisionmaking. A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference; judges who give into that temptation exceed the limits of their power by holding a statute unconstitutional when it is not. That was the heart of the originalist critique of the Warren and Burger Courts. At the same time, fidelity will inevitably require a court to hold some statutes unconstitutional. When a statute conflicts with the Constitution, the fundamental law of the Constitution must take precedence, and the ordinary law of the statute must give way—because, properly understood, it is not law at all. A court does not overstep simply by holding a statute unconstitutional; it oversteps if it does so without constitutional warrant.(emphasis mine- KenH) Assessing whether the Court has been activist requires one to evaluate the merits of its decisions, not to tally the number of statutes it has held unconstitutional."

...

"The Constitution’s meaning is fixed until lawfully changed; thus, the court must stick with the original public meaning of the text even if it rules out the preference of a current majority."

 

Since ACB describes Scalia’s judicial philosophy as her own, I think we can expect her to pretty much decide as he would have.

 

Hey, EWF, this is 2020, not 1960 when JFK was elected president. Your political anti-Catholic bigotry is very outdated. Your attitude would fit in much more with 1720 or 1820, not 2020.

 

I believe her loyalty will be to the U.S. Constitution, as it should be for every Supreme Court justice.

You, of course, are free to believe whatever you want.

 

Interesting how an academic article posted that could have been a source of reasoned discussion has been dragged down into the mud, which began with EWF and his ridiculous slur, “After all she is a papist with divided loyalties.”

So, EWF, care to deal with the substance of the article?