"Originalism" and the Idea Judges Should be Umpires, Not Policy Makers

Today begins the Supreme Court confirmation hearings for Amy Coney Barrett.  A former Notre Dame law school professor and current judge on the 7th Circuit Court of Appeal, Coney began her legal career as a clerk to Judge Laurence Silberman of the D.C. Circuit Court of Appeals before she moved on to clerk with Justice Antonin Scalia of the United States Supreme Court.  She, like Scalia, believes in the judicial philosophy known as "originalism."

I had a lot of respect for Scalia.  The only black mark in his stellar career was Employment Division v. Smith, a nonsensical decision he authored which effectively lowered the First Amendment religious free exercise clause to the level of a common statute.  The case led to conservatives and liberals, even the ACLU, to join together to pass state and federal religious freedom restoration acts to undo the assault on religious freedom permitted by Employment Division v. Smith.  Note:  It is only in recent years that liberals backed away from the support of religious freedom.

Judge Amy Coney Barrett

My admiration for Justice Antonin Scalia is based mostly on his insistence on a coherent judicial philosophy which he labeled as originalism.  (Unfortunately, it was a judicial philosophy he oddly did not follow in Employment Division v. Smith.)  I have actually never been fond of that term which is an overly-simplistic description of a philosophy that is actually much more complex.  

The first step in "originalism" is to look at the actual wording of the constitutional provision or statute that is to be interpreted. This step is known as "strict constructionism" or "textualism."  If it is not clear from the actual wording how it is to be interpreted, you look at the original intent of those who drafted the provision or statute.  Finally, if the situation is still not clear, judges should defer to the democratic process.  With "originalism," it is not the job of judges to enact policy.

Critics of originalism are quick to point out problems with this approach.  Language used in the Constitution and statutes is sometimes antiquated, and intent often cannot easily be ascertained, if at all.  And, with regard to Constitution, do you look at the intent of the drafters of the provisions or those who ratified it?    Because of these problems, critics of originalism assert the philosophy is "dangerous."

When you ask critics of originalism though what philosophy they advocate in its place, you generally hear crickets in response.  If they respond at all, they offer the vague assertion that the Constitution and statutes should be "living."  Well, what they heck does that mean?  If you do manage to get clarification, it is an assertion that judges should be free to adopt whatever interpretation of the Constitution or statutes they deem best.   So then you follow up by asking if this means judges should have no limits on their authority to interpret the law?  Oh, no, critics of originalism insist judges will still be limited. But what are those limits. They can never articulate those limits.  Bottom line is that they are perfectly fine with unelected federal judges enacting public policy, well as long as those are liberal polices they prefer.

Trying to get an anti-originalist to articulate a coherent judicial philosophy is like trying to clear fog out of a room by waving a broom.  You'll get nowhere.

While the Democrats have a legitimate gripe regarding the hypocrisy of how the Republicans treated Merrick Garland compared to their rushing Barrett through confirmation right before the election, they are wrong in criticizing her judicial philosophy.   We need judges, particularly those on our Supreme Court, to return to the role of interpreting the law rather than making it.

OOP's short takes:

• News just broke that Joe Morgan has passed away.  Since August 31st of this year, Hall of Famers Tom Seaver, Lou Brock, Bob Gibson, White Ford, and now Morgan have died.  God must be assembling one hell of a baseball team.  I'd be a bit concerned if I were Juan Marichal right now.