By Leon Galis
Not even in my wildest dreams did I ever think that I’d be grateful for the Federalist Society, the organization of conservative lawyers to whom Donald Trump has outsourced the search for nominees to the federal courts, the U. S. Supreme Court in particular. Love ‘em or hate ‘em, his Supreme Court nominees haven’t been the intellectual midgets and suck ups he’s strewn around the executive branch. We can thank his former White House Counsel Don McGahn for that. Having seen up close and personal how poorly equipped Trump is to make these nominations, McGahn turned to the Federalist Society to do much of the nominee vetting that Trump couldn’t be relied on for. So if we didn’t get Ruddy Giuliani, William Barr or worse confirmed to the Supreme Court by a spineless Republican Senate majority, McGahn is probably the key figure who spared the country that dismal fate.
I don’t know whether Amy Coney Barrett should be confirmed. That’s way above my pay grade. I haven’t read the voluminous trove of documents, background checks and all the other stuff that the Senate Judiciary Committee’s staff is combing through right now. And by the way neither have you. Nor am I going to try to predict how Barrett will vote on the hot-button issues that everybody is hyperventilating about. I’m shooting for something much more modest. I’m just going to try to rescue her from the caricature she’s being reduced to in much of the professional media and unprofessional media.
Two things that are setting off very loud alarms among Barrett’s detractors are her religious beliefs—she’s a charismatic Catholic—and her approach to constitutional interpretation--she’s an originalist. A law review article that she co-authored in 1998 concluded with the assurance that, “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” What many people are missing now is that the whole point of her originalism is to uphold her 1998 view that judges’ decisions on the bench won’t and shouldn’t just track their personal beliefs. Originalism tries to do that by anchoring a judge’s decisions in the public understanding of the Constitution when it was ratified. That’s going to take some explaining.
A constitutional democracy is a system under which all parties agree in advance to a set of procedures for the conduct of their collective public business. And Article VI of our Constitution, where those procedures are spelled out, provides that, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
When you hear people say that ours is a government of laws, not men, this “Supremacy Clause” is what they’re talking about. But it isn’t just any laws that bind us. It’s only the ones codified in “this Constitution” and any others we make that conform to it. Which raises the obvious question who decides what the provisions of “this Constitution” mean and whether or not other laws conform to it. Chief Justice John Marshall, in Marbury v. Madison (1803), ruled that any law inconsistent with the Constitution was “void,” in other words, not really a law, and that it’s “emphatically the province and duty of the judicial department to say what the law is.”
The legitimacy of the Supreme Court depends on the Justices faithfully carrying out the Marshall mandate to “say what the law is,” not letting their personal beliefs and policy preferences color their judgment about that. Those considerations are reserved for the legislative branch, whose members are answerable to the voters, but are off limits to jurists appointed for life during good behavior.
Carrying out the Marshall mandate is a very tall order, a standard that’s impossible to live up to fully. Supreme Court justices after all are human beings, not algorithms, and bring the whole package of human capacities and flaws to bear on their work.
So the most that we can expect of them is a conscientious, sustained effort to meet the Marshall standard. And originalism, to which Barrett subscribes, was designed as a procedure for aiding justices in that effort. But it got off to a bad start in two ways. First, its most famous advocate was Ed Meese, Ronald Reagan’s Attorney General, who argued for it in response to what he and fellow conservatives objected to as the judicial “activism” of the Supreme Court under Chief Justices Earl Warren and Warren Burger. Originalism came to public attention wearing partisan political garb as a device for constraining the tendency of the Warren and Burger Courts to “legislate” from the bench, usurping the role of the political branches. Second, in early versions of it, originalism directed judges interpreting the Constitution to rely only on the original “intent” of its authors. That struck many people, rightly, as stupid, suggesting seances or something in the Supreme Court’s chambers where the justices communed with a bunch of dead guys about what they’d been thinking as they penned the Constitution’s text.
Although originalism hasn’t entirely cast off its partisan associations—judges sympathetic to it are considered “conservative” and those not are considered “liberal”—nobody any longer thinks it’s open to ridicule for prescribing seances. It’s recent and current practitioners, including Barrett, can rely on a wealth of documentary evidence revealing the public understanding of the Constitution when it was ratified. So while a reasonable person can certainly have reservations about originalism, as I do, it’s not stupid, and th