Barrett: Actually, It's Not the Job of Judges to Correct Every Societal Ill in America

Posted: Oct 12, 2020 3:20 PM

On the first day of her confirmation hearings, Judge Amy Coney Barrett -- who was just rated "well qualified" for the position by the left-leaning American Bar Association, which Sen. Chuck Schumer has called the "gold standard" on these matters -- sat through speeches from Senate Judiciary Committee members before delivering her own opening statement.  Barrett discussed her family, her upbringing, and the unique nature of her nomination:

I was nine years old when Sandra Day O’Connor became the first woman to sit in this seat. She was a model of grace and dignity throughout her distinguished tenure on the Court. When I was 21 years old and just beginning my career, Ruth Bader Ginsburg sat in this seat. She told the Committee, “What has become of me could only happen in America.” I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led. If confirmed, it would be the honor of a lifetime to serve alongside the Chief Justice and seven Associate Justices. I admire them all and would consider each a valued colleague. And I might bring a few new perspectives to the bench. As the President noted when he announced my nomination, I would be the first mother of school-age children to serve on the Court. I would be the first Justice to join the Court from the Seventh Circuit in 45 years. And I would be the only sitting Justice who didn’t attend law school at Harvard or Yale. I am confident that Notre Dame will hold its own, and maybe I could even teach them a thing or two about football.

If confirmed, Judge Barrett would be the High Court's fifth-ever female justice. The most substantive portion of her prepared remarks entailed a reflection on her admiration for Justice Scalia, for whom she once clerked. Here's what she said about the proper role of the courts under the American system, an important truth that almost serves as a big-picture rebuttal to the unhinged fury that accompanies modern-day confirmation battles:

More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men...Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.

Amen. And lest she be accused of being too coldly clinical in an era dominated by emotionalism, Barrett also explained how she goes out of her way to be empathetic: "I try to remain mindful that, while my court decides thousands of cases a year, each case is the most important one to the parties involved. After all, cases are not like statutes, which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world, often through their liberty or livelihood. When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how would I view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law? That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court."  The full remarks:

Committee Democrats spent an inordinate portion of their Monday commentaries focusing on the issue of Obamacare, a decision likely driven by polling data.  Their argument is that the 'Affordable' Care Act is under threat by the Court, based on an active lawsuit.  Because most Americans are opposed to ending some of the ACA's most popular protections (pre-existing conditions, in particular), Democrats evidently decided that pursuing this line of inquiry and attack represents their most potent political ammunition against Barrett.  Because they're pursuing this strategy so relentlessly, I recommend reading Ramesh Ponnuru's Bloomberg analysis of the substance of their case:

The fate of Obamacare is the issue that Biden, and other Democrats, think gives them their best political opportunity during Barrett’s confirmation process...Texas has a lawsuit against Obamacare, which the administration of President Donald Trump is backing. If the lawsuit succeeded and Congress and the president did not pass a new protection, people with pre-existing conditions could have trouble getting affordable insurance...It’s not just that there’s no basis to think that Barrett favors this legal challenge. There’s no evidence that any of the five Republican appointees currently on the Supreme Court do. A unanimous defeat remains a possibility. Just two months ago, three of those Republicans agreed with an opinion that stated “a decisive preference for surgical severance rather than wholesale destruction” when one part of a law must be struck down...Biden wants you to think that confirming Barrett would spell doom for the Affordable Care Act. He is wrong because the lawsuit against the act is a longshot with little legal merit. But because the Trump administration made the foolish decision to back the lawsuit on political grounds, that’s a truth it can’t say.

It's true that Barrett (rightly, in my view) criticized Chief Justice Roberts' inventive maneuver to save Obamacare from itself in 2012. But that decision hinged on a provision of the law -- the coercive individual mandate 'tax' -- that is now gone.  It was repealed by Congress. And according to a Los Angeles Times report, for what it's worth, Barrett ruled against the Trump administration's lawsuit in a mock supreme court exercise.  That's obviously not binding, or even necessarily any sort of indication about how Barrett would rule on the actual case, but the unanimous 'mock' ruling does suggest that Ponnuru is correct about the strength of the particular legal challenge over which Democrats are trying to make so much hay.  Meanwhile, here's my fact-check of a former Democratic Senator who lost her 2018 race after going along with the anti-evidence mob in the Kavanaugh confirmation process.  She's repeating a popular and inaccurate lefty talking point -- seemingly intended to cast doubt on the Court's legitimacy, and perhaps to lay the groundwork for court-packing:

The Dumbest Biden
Derek Hunter

There is no legitimacy crisis surrounding the Supreme Court.  Public polling is hardly a final arbiter of such things, but the American people consistently rate SCOTUS higher than the president, and certainly Congress. I'll leave you with Sen. Ben Sasse delivering a needed civics lesson:

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