The Court has its Ninth Justice

Folks need to move on from this Supreme Court business. The nation has its ninth justice. But before moving on, a reminder on hypocrisy and what lies behind it:

Let history record that it was the Democrats who insisted on hearing Merrick in an election year. Were all the arguments they made then—and they made them confidently and dramatically—made in bad faith? Probably. But let’s take Democrats at their word.

McConnell and Grassley, in that famous Washington Post op-ed, had every reason to believe that Hillary Clinton would be elected president in 2016. Article II, Section 2 of the Constitution grants the Senate the right to withhold its consent. Whatever their arguments were about hearing the voice of the people, MccConnell’s party held power in the Senate. (Republicans even held power in the House. It was a divided government between executive and legislative branch.)

Here’s what not being hypocritical would look like: If you say something in 2016, and you say it is on principle, then you have to say the same thing in 2020. It’s principle. It doesn’t change. In 2016, Democrat after Democrat insisted on hearing Merrick in an election year (watch above video). President Obama was a Democrat president. The Republican majority didn’t have to schedule a hearing or a vote for the nominee of a president of the other party. Elections have consequences. Power matters.

Trump ran on putting originalists on the Supreme Court. His party controls the Senate. They scheduled a hearing and a vote. Elections have consequences. Trump and Republicans followed through with their promise. Democrats are contradicting themselves on principle.

What is this about? Democrats aren’t really concerned about hypocrisy (they would have appointed a judge in an election year if Hillary Clinton had been president—this isn’t about principle). The noise they made was really about keeping the Supreme Court out of the hands of those who base interpretation of disputes the philosophy to which Amy Coney Barrett subscribes, namely originalism, which progressives equate to racism, sexism, and homophobia. (For them, our founding fathers were horrible people.)

Asked during the confirmation hearings about her method, Barrett said, “I interpret [the Constitution’s] text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

The term “originalism” emerged in the 1980s to capture the character of a judicial philosophy that holds that, in resolving legal disputes, the judge must do so in light of the Constitution’s text and the founders’ intentions. If progressives want to change the law, originalists suggest they do the hard work—the work assigned to the legislative branch, which represents the will of the people—of passing and repealing laws rather than depending on an activist judges to inject new meaning into the founding texts on the basis of their ideological views. Supreme Court justices aren’t elected by the people (heaven help us if they ever are). They are there to interpret law, policy, dispute, and judgment in light of the Constitution and other founding texts and other legislative texts and intentions. Just imagine activists judges on the right injecting their ideology into the law and you get the problem with judicial activism.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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