Supreme Court nominee Amy Coney Barrett

Leaving out the controversy surrounding former President Obama, Merrick Garland and the Mitch McConnell Senate Republican stance in that particular case, and focusing solely on Amy Coney Barrett, I have found her to be one of the most impressive people I have come across – at least based on the information so far.

Alan Calandro

I admire many people in public life, although admittedly the number has been shrinking over the years – due in large part, I think, to cameras, egos and social media. In Judge Barrett’s case, I have been struck by her tremendous intellect, honesty, transparency and integrity – and I am a fan. This woman will never be a politician, as she seems devoid of the attributes typical for politician advancement: obfuscation, self-aggrandizement, and the desire to serve the party machine above all else.

I urge all open-minded individuals (partisans will likely be unaffected) to watch two first-hand videos: her attending a Jacksonville University Q&A in 2016  and a Hillsdale College “Conversation” she gave in 2019. These are videos in her own words – not characterizations by those with an agenda. And they are not polemical in any sense so they are a “safe” place.

YouTube video

In the case of the first video, even if you can’t stand the thought of a Trump nominee, do yourself a favor and watch the Notre Dame Law Professor’s thoughtful and objective layout of the two sides of court interpretation – the “originalist” view vs. the “expansive” view, the difference between constitutional cases and statutory cases, and the influence of the due process clauses of the 5th and 14th amendment among other objective educational information.

Professor/Judge Amy Coney Barrett is clear and transparent in her approach to interpreting the Constitution and its amendments. Her approach is, in my mind, the proper objective way – with the “originalist” view. That is to say interpreting the Constitution with the intent and the meaning that its writers had at the time. The late Justice Antonin Scalia, for whom she clerked, would be a prime example of this approach.

The “expansive” view on the other hand, looks at the Constitution in the current context of society, that norms and social expectations have changed and therefore the Constitution must not be held to out-of-date standards and norms that no longer exist. Justice Stephen Breyer would be a prime example of this approach.

I have long felt that the expansive view is logically corrupt for two reasons although I certainly understand the motivation, much of it positive and reasonable, behind it.  The second video helps explains why. To be clear, I do not mean to accuse any justice of corruption. My assertion of corruption is that this particular view violates what a judge must be: objective. If judges shape their decisions based on their policy preferences or advancement of some goal, they are making the law – which is not their constitutional role – it is the legislative role, hence a corruption of their duty and therefore an abuse of power. I do understand that a human judge may feel that the only way to prevent some terrible wrong from occurring is to insert a newfound unwritten right into a ruling; that they may feel they have no choice but to “do the right thing.”

As a hypothetical example in favor of the expansive view, if there are signs or long held laws saying you are not allowed to go within 50 feet of a river for safety, environmental or other reasons but you see a helpless child drowning – do you break the law and save them? Most people would answer yes as I would also. But in real life an exception would/should be made for that violation and the law would return to normal or the lawmakers would revisit the law and change it.

Such an example of extreme life or death urgency is generally not relevant to most cases in front of the Supreme Court and if it were the court has the ability to delay or postpone a decision to avoid public mayhem, etc. Nonetheless some judges take it upon themselves to insert their policy preferences into their rulings – even when the vast majority of the public do not agree. After all, when a ruling goes your way, you really don’t care what the justice did to get there – they become heroes which is highly intoxicating. This is not to say that public opinion should be relevant to how judges decide cases, quite the opposite, I only mention it because expansive judges subsume the legislative role which is heavily based on what legislative constituencies (“The People”) desire. In the absence of saying otherwise, the framers intended these issues to be left to the people (admittedly to the increasingly dysfunctional and low-regarded Congress).

One of the classic ways to “corrupt” constitutional interpretation is to use the due process clause of the 5th and 14th amendments to create rights …. essentially out of nothing. The clause in the 5th Amendment reads: “No person shall … be deprived of life, liberty, or property, without due process of law,” while the clause in the 14th Amendment says: “…nor shall any State deprive any person of life, liberty, or property, without due process of law.”  Expansive rulings have occurred repeatedly since Earl Warren was Chief Justice of the Court from 1953 to 1969 and after. The Warren Court is recognized for its expansive and creative use of interpretation to achieve policy ends. Many legal scholars, even those who agree with the policy outcomes, think such constitutional reasoning is highly suspect.

But you don’t have to be a legal scholar to see this (settle down sensitive esquires out there – I know such a statement bothers you). Consider Roe vs. Wade: a highly charged case and topic but one that is illustrative. Regardless of whether you agree with the right to abortion or not, you will not find anything remotely (ok, maybe remotely) related to the issue in the Constitution. The Roe vs. Wade opinion is based on the constitutional right to privacy found nowhere in the Constitution – even if one assumes that a right to privacy includes abortion. The long and winding indirect linkages in the case to other cases are so convoluted, that in my mind it makes the ruling illegitimate. One could just as well argue that the due process clauses make abortion unconstitutional because they mention “person” and “life.” To be clear, I am not arguing for or against abortion rights, only that if not indicated or intended in the constitution, it should be left to the people.

And by the way, Amy Coney Barrett has essentially stated in several firsthand accounts that she thinks Roe vs. Wade is essentially settled law and doesn’t see it being overturned – although it does seem likely that she would vote in favor of state limitations that do not currently exist or have been overturned in other courts. That won’t stop the hysterical attacks on her though which are now coming out. Many in the media can barely hide their disdain and worry such as this early pre-nomination clip from CBS newsOthers call her a far right radical and one that will help vote against the Affordable Care Act in a case coming before the court on 11/10/20. Those fears seem unfounded since in a moot court (for educational purposes) held shortly before Ruth Bader Ginsburg’s death, her position on the moot court over the Affordable Care Act “mostly went against the Trump administration’s stance.” This was probably due to her strong and consistent support of court precedence.

For me, I have always questioned the logic of Stare Decisis which is the legal doctrine that “obligates courts to follow historical cases when making a ruling on a similar case… and binds courts to follow legal precedents set by previous decisions.” I do understand that for everyday law like probate matters or property law it makes sense for lawyers and judges to have some mutual expectations to go by when advising clients but on the other hand going along with something that is racist or stupid that was decided by someone else doesn’t make sense either.  In case you think you detect a contradiction, this does not refute my non-expansive view of interpretation since in these lower courts the laws are constantly changed by law-makers based on problems with it brought to the legislature.

Which brings me to the second reason why I think the expansive view is corrupt. There is a clear system in the U.S. Constitution to allow it to be amended. It has occurred 27 times so far, so obviously it can be done. Granted, requiring ¾ of the states to ratify it is not easy or fast. But that was the intent of the framers – to avoid changes based on passing whims. If there were no mechanism to amend the Constitution then I think the expansive view must take hold. Obviously, the framers could not conceive of the modern state of technology or the internet or an array of other things, so being stuck in an outdated mindset would not make sense. But that is not the case, there is a mechanism to change it including changing the mechanism itself or anything else, if the people are so determined. The Constitution is at the core of what makes America special and has enabled our system of government to survive for so long. Because “it is hard” is not a good enough reason to circumvent the Constitution.

Unfortunately, the upcoming nomination process will be polarized and partisan, once again. If you are one that believes that you have gained from the expansiveness of the court’s intrusion into legislative policy making since the Warren Court then you will not like this nomination. I find that extremely unfortunate, since Judge Barrett openly and often speaks about how a judge’s personal preferences – religious, moral or otherwise – should not play a part in constitutional interpretation. Ask yourself this: should you ever have a personal case brought before a judge, wouldn’t you want the judge to hold the same viewpoint?

Alan Calandro is former Director of Connecticut’s nonpartisan legislative Office of Fiscal Analysis.

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