The hearings for Judge Amy Coney Barrett are mercifully over. The frustrated Democratic minority tossed in the kitchen sink and more against her. However, she proved to be the most difficult kind of judicial nominee to attack.
Ultimately, the problem is that the Left no longer cares about the Constitution. Whatever progressives want is by definition constitutional. There are no limits to government power other than those they favor.
Her academic and legal credentials are impressive. Her personal life is warm and welcoming, evidencing someone who cares about more than just law books and jurisprudential principles. Her demeanor suggests someone who would handle high court responsibilities seriously and fairly. Her record as an appellate judge is intellectually solid, respectful of precedent, and reflective of nuance.
Still, should the Senate vote to confirm?
The ultimate issue is whether she would faithfully fulfill the role of a Supreme Court justice. Although there are more than enough complex jurisprudential visions to go around, the choice broadly comes down to two. Does one want to do law, essentially figuring out what lawmakers enacted and whether that comports with the Constitution? Or does one want to do policy, essentially making up “the law” as one goes along, acting as a legislator and voting on what one believes to be good legislation?
This distinction was evident the moment Barrett was nominated. Her public record suggests a commitment to the former. Of course, even a seeming “originalist” on a lower court can turn into a legislator-wannabe when elevated to the Supremes, whose decisions are final. The list of awful Republican nominees — from William Brennan to David Souter — is long. All were thought to be judges but ended up acting like legislators. Nevertheless, Barrett’s record suggests that she really plans to be a jurist, not a legislator, if approved to sit on the Supreme Court.
But progressives have given up any pretense of believing that judges at any level should just be judges. For the Left the courts are another legislative arena. In this view, judges should ensure the right political results. While it is convenient if there is statutory or constitutional language available to torture, so the ruling appears to be vaguely related to some statutory or constitutional provision, the lack thereof is no barrier. After all, there always are penumbras and emanations to explore!
Political judges are especially useful when progressives lose legislative fights. If the people and their representatives say no to one or another statist fantasy, then demand that unelected judges act as elected lawmakers. The Left now unashamedly expects judges to make purely political decisions, irrespective of the legal gloss. If a libertarian/conservative-leaning jurist doesn’t rule that the law automatically produces a leftish result, a hue and cry goes up that the judge is against the policy result, even though he or she made their decision based on legal principles.
The standard is Roe v. Wade, which legalized abortion across the country even though the procedure was prohibited across the country when the 14th Amendment, upon which the majority based its decision, was passed. Even many liberal legal scholars initially admitted that Roe was a legislative, not judicial, decision and could not be justified on constitutional grounds. When Republicans subsequently made judicial appointments an issue, Democrats complained about “litmus tests” for judicial nominees.
Today, however, the Left has made the completely unrestricted killing of babies a bedrock issue. Even late-term abortion, as close to infanticide as one can get before a fetus has escaped the womb, is now an article of faith. For the Left Roe has become an uber-duber “super-precedent” which must be upheld no matter what. Law and Constitution be damned!
To stray from that stance one is denounced for the legal equivalent of crimes against humanity. Barrett demonstrated integrity, intelligence, and common sense in refusing to endorse Roe as immutable, handed down from on high, unquestionable by mere mortals, and thus equivalent to the 11th Commandment.
However, weirdly, the key political issue this judicial fight appears to be the misnamed Affordable Care Act. The measure proved to be anything but affordable to normal people and directly provided no care. The number of uninsured changed only marginally, and mostly in response to the expansion of Medicaid, which did not depend on the Rube Goldberg system of insurance regulation. However, the measure has taken on talismanic significance, perhaps because the Democrats spent a half century pushing national health insurance. It would be psychologically devastating to admit that they bungled the job.
For instance, Senate Minority Leader Chuck Schumer charged that Barrett “wants to take away your health care.” Sen. Dick Durbin, a member of the Judiciary Committee, opined that one of the opposition’s “starting points” was “the importance of the Affordable Care Act.” Presidential nominee Joe Biden claimed that President Donald Trump was using the Barrett nomination “to fulfill his explicit mission: steal away the vital protections of the ACA from countless families that have come to rely on them.”
The left-wing website AlterNet dismissed as unbelievable Barrett’s testimony that “I think that your concern is that because I critiqued the statutory reasoning, that I’m hostile to the ACA. And that because I’m hostile to the ACA, that I would decide a case in that particular way. And I assure you, I am not. I’m not hostile to the ACA. I’m not hostile to any statute that you pass.” Passionate lefties cannot imagine a judge not fixated on politics who would make decisions based on the law.
Even more fevered and bizarrely hysterical was the argument from Laura Packard, whose article was entitled “I survive cancer, but I fear Amy Coney Barrett on the Supreme Court.” Packard said she is uninsurable and without the ACA would “be bankrupt or dead without insurance.” Which she equates with the ACA. So if you vote for Barrett, you are voting to kill Packard. Never mind America’s Constitution, federal law, judicial responsibility, and good sense. None of these matter.
I faced similar hysterical and mindless, though impassioned and heartfelt, sentiments when I debated the ACA’s constitutionality after the measure’s passage. One law student — who apparently learned nothing of the law while studying law in law school — argued that the ACA had to be constitutional because he had a close relative who benefited from it. Imagine if segregation was judged by the same standard: Plessy v. Ferguson should have been upheld because some Southern whites prospered as a result. Never mind what the Constitution required.
How to address concerns of people like Packard lies with Congress. Agree with Obamacare or not. The decision on it is, or at least should be, political and legislative. A good society should find a solution for problems in access to health care. But policymakers should follow the law in doing so. They should draft legislation consistent with the Constitution.
There are a multitude of methods to extend health-care coverage, but that doesn’t mean all are constitutional. Would Packard so enthusiastically defend a measure that conscripted doctors and nurses to work at slave wages serving the public? The ACA’s infirmities are less obvious, but that doesn’t mean they are less real.
Ultimately, the problem is that the Left no longer cares about the Constitution. Whatever progressives want is by definition constitutional. There are no limits to government power other than those they favor — basically, sex should be unhindered, while the state can regulate everything else. If you are so retrograde as to argue that government has exceeded its power, then obviously you are against the legislation’s purpose. You just might want to kill Packard and others like her.
The ACA was a thoughtful but flawed attempt to “fix” a messy hybrid system, which government largely controlled while leaving execution to private actors. There is broad support for mandating community rating and restricting pricing for preexisting conditions. But alone such provisions disrupt health care because “young invincibles” flee the market rather than pay for old fogeys like me. So Obamacare mandated health insurance, a provision most everyone hated. Ordering people to buy health insurance meant the government decided what kind of policies were necessary, which meant allowing the usual interest groups to force all of us to pay for all sorts of benefits, many of which no normal human being desired. Or political mandates, such as contraception, in order to discomfit groups and beliefs that the Obama administration despised. So premiums sky-rocketed. Which caused even more young invincibles to flout the mandate. Causing insurers to lose money. And so the spiral went.
The basic constitutional problem is that Congress has no power to order people to buy insurance, that is, to create commerce rather than regulate what already exists. The four lefties on the high court didn’t care, since their view was that they were de facto legislators entitled to vote on the ACA on its merits. Four of the center-right justices decided that the Commerce Clause required actual commerce for the government to regulate. Justice John Roberts believed that as well, but didn’t want the high court to look political, so he penned a solo opinion that the ACA was a tax, which made the legislation constitutional. Serious constitutional scholars dismissed this argument. Even the Supreme Court’s liberals dismissed the claim on substance, but they embraced it for its results. Thus Roberts’ dishonest pragmatism saved the measure.
Since then Congress eliminated the mandate/tax, which removed the supposed constitutional justification for the legislation. Lawsuits then were filed seeking to toss the entire act. The ACA’s defenders insist that the requirement should be severed from the rest of the act. The decision could go either way. The Supreme Court will decide.
Hence the opposition’s focus on what Barrett thinks about the ACA.
If the law falls, the fault would not be Barrett’s. Rather, blame would belong to legislators who did not conform their measure to the Constitution. Nothing blocks Congress from addressing health care. However, the Constitution does not authorize every means of addressing health care. Lefties are angry that their poor handiwork is being judged in federal court by legal, not policy, standards. But that is exactly what the courts are supposed to do.
Left-wing scaremongers also are raising alarm over climate change. The New York Times headlined a front-page story: “Barrett Ducks Climate Issue, Raising Alarm.” Why is she even being questioned about climate science and appropriate policy responses? Apparently environmental activists haven’t noticed, but she was nominated to be a judge, not EPA administrator. In fact, Barrett reasonably responded, “I will not express a view on a matter of public policy, especially one that is politically controversial.” Why should she?
Her views should be irrelevant to the environmental movement. She won’t stop their activity. Indeed, her view is an invitation for them to focus on the political process. An article in the Financial Times observed, “Supreme Court’s rightward tilt means climate activists must focus on Congress.” Which is what they always should have done. The Supreme Court has no policy role and should not twist legislation passed decades ago to address issues of far more recent vintage. Lawmakers at the state and federal level should do their job and legislate when necessary.
Nor is fearmongering over Obergefell v. Hodges, the ruling on gay marriage, justified even for gay activists. Like abortion, this issue was gradually advancing across the U.S. states as states played their traditional role as laboratories of democracy. Generational change guaranteed the ultimate outcome. As recently as 2008 California voted against gay marriage. That result is unimaginable today. As with Roe, the justices short-circuited the political process, but even a strengthened conservative majority would be unlikely to reverse Obergefell: the generations continue to advance, strengthening the opinion’s democratic foundations. Even more important, thousands of gays have married, creating a large reliance interest. Almost certainly a Court with Barrett as a member would leave the issue undisturbed.
The Senate has plenary authority to decide on Barrett’s nomination. However, the decision should be based on whether she would act as a judge and do law, that is, decide what legislation means and how the Constitution should be applied in a given situation. She should not be assessed as if she was running for a legislative seat, selected or rejected based on her support for the Left’s policy agenda.
If Democrats win the presidency and Congress on November 3, they will have a chance to transform the country. If they lose the political campaign, they should not ask the courts to do their dirty work. Especially at the Supreme Court, justices should be judges, not legislators.
Doug Bandow is a Senior Fellow at the Cato Institute and former Special Assistant to President Ronald Reagan. A graduate of Stanford Law School, he is a member of the California and D.C. bars. He is the author of several books, including The Politics of Plunder: Misgovernment in Washington and The Politics of Envy: Statism as Theology.