By Cass R. Sunstein / Bloomberg Opinion
We have heard a great deal about Judge Amy Coney Barrett’s approach to the law in the time leading up to her Supreme Court confirmation hearings this week. She believes in adhering to the text of the U.S. Constitution and of statutes enacted by Congress, and in following the “original meaning” of that text.
In this respect, she follows her mentor, the late Justice Antonin Scalia. In her words: “It was the content of Justice’s 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.”
She also explained, “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
Fair enough. But what would you think about a judge who voted to strike down the Affordable Care Act, to strike down greenhouse-gas regulations, to strike down gun-control laws, and to strike down affirmative-action programs?
Would you be quite clear that such a judge had been “resolute in setting aside any policy views they might hold”?
What would you think if that very same judge voted to invalidate congressional restrictions on corporate speech, voted to forbid Congress from allowing citizens to bring suit in federal court, voted to strike down campaign-finance regulations, voted in such a way as to hand the 2000 presidential election to President George W. Bush; and consistently voted against constitutional protections of gays and lesbians?
Would you be so sure that such a judge was simply “applying the law as written”?
And what would you think if that same judge voted to strike down environmental regulations as interfering with property rights, voted to overrule Roe v. Wade, and ruled against a constitutional right to same-sex marriage?
Would you think that such a judge just followed the law? Merely adhered to the text? Put his political preferences entirely to one side?
Would you say that this package of votes, fitting so perfectly and consistently with the views of the Republican Party, just happens to fall out of neutral readings of “the law”?
The foregoing summary of votes is not hypothetical. It captures many of the highlights of the voting record of … Justice Antonin Scalia.
We should be careful here. Scalia was a highly distinguished member of the Supreme Court, and one of the greatest writers in the court’s history. He had many important ideas. He was right to insist on careful attention to legal texts. A number of his votes — for example, his vote in favor of giving constitutional protection to flag-burning — did not seem to fit with his political predilections.
Still, it’s a myth, even a form of baby talk, to say that in the hardest cases, judges can always “apply the law as written.” When cases get to the Supreme Court, the law, as written, is often vague or ambiguous. You can claim to be an “originalist,” but the original sources often leave gaps and ambiguities. What then?
If a judge’s overall pattern of votes fits exceedingly well with the preferences of one or another political party, we are entitled to doubt whether that judge has been “resolute in setting aside any policy views they might hold.”
We are also entitled to worry whether the crude picture of legal reasoning, given by those who proclaim that a “judge must apply the law as written,” is a service to the American people, or even a way of treating them as adults.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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