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OPINION

A judicial undoing project

With Barrett, as with Gorsuch and Kavanaugh, the administration has ceded — no, outsourced — the nominating process to the Federalist Society.

Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill on Oct. 14.
Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill on Oct. 14.Pool/Getty

In his 2016 book “The Undoing Project,” Michel Lewis described the work of psychologists Daniel Kahneman and Amos Tversky as “undoing” assumptions about human decision-making. The title is also apt for what is unfolding before the Senate today: the Republican Party’s efforts to remake the Supreme Court into a conservative branch, first with the addition of Justices Neil Gorsuch and Brett Kavanaugh, and now with the nomination of Judge Amy Coney Barrett.

This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Barrett, in an article entitled “Catholic Judges in Capital Cases,” distinguished between a judge’s obligations in death penalty cases and abortion cases. Abortion, she said, was “always immoral,” the church’s teachings constituting a “flat prohibition.” In contrast, the church treated the death penalty as permissible in cases of “absolute necessity.” Barrett’s mentor, the late Supreme Court Justice Antonin Scalia, whose originalist judicial philosophy she touts, stridently dissented when the court ruled that the state cannot criminalize homosexual conduct or prohibit same-sex marriage. On the Affordable Care Act, Barrett accused Chief Justice John Roberts of having “pushed” it “beyond its plausible meaning to save the statute.”

But this undoing project is broader — it’s a return to an era decades ago, when a conservative pre-New Deal Supreme Court used a contested constitutional doctrine about freedom of contract — the right of workers and bosses to contract for the terms of employment — to invalidate statutes requiring improved working conditions, higher wages, and limited hours. Recently, the court’s conservative majority held that the requirement that public employees pay agency fees to support their union violated the free speech rights. Justice Elena Kagan called it “weaponizing the First Amendment” in a way that “unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Meanwhile, Gorsuch and Kavanaugh actively challenge the independence and the work of administrative agencies, undermining agencies like the Environmental Protection Agency or the Equal Employment Opportunity Commission.

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Some might say that Barrett’s commitment to precedent and originalism — a belief that the Constitution must be interpreted based on its intent at the time it was enacted — should prevent a wholesale undoing project, remaking Supreme Court jurisprudence. The short answer is no. While originalism was trumpeted as a philosophy to restrain judges, in response to the supposed “activism” of former chief justices Earl Warren and Warren Burger’s courts, today’s originalists are different. The Institute for Justice, a libertarian organization, says that refusing to reconsider precedent in the interest of “judicial restraint” is wrong. In fact, rejecting precedent is a good thing, not improper judicial activism because “the Constitution trumps precedent.” Barrett agrees wholeheartedly; if, as she says, the “constitutional vision” of her predecessors was flawed, and her interpretation “better captures” the original meaning of the Constitution, then precedent is out the window.

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And Barrett’s constitutional vision? In seeking out the “original intent” of the Constitution’s framers, judges like Barrett can too easily use the Constitution’s vague language as a cover for their own predilections. The Constitution, after all, simply provided a “framework,” as retired Harvard Law School professor Laurence Tribe has described, not a blueprint.

Take the 1857 Dred Scott decision, written by Judge Roger Taney, an avowed originalist. The court, he wrote, should not “give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” So when asked whether Black Americans were included in the Constitution’s phrase “We the people,” he concluded categorically that they were not. Small wonder the framers, white men with property, did not care much about them – or women, or the poor, to name a few. Even Thomas Jefferson cautioned against treating the Constitution with “sanctimonious reverence,” too sacred to be touched, rather than “keep[ing] pace with the times.”

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But the undoing project goes beyond Barrett’s judicial philosophy; it has changed the way judicial nominations are made. Most people know that Gorsuch got the Supreme Court bid because Republicans held up President Obama’s pick for Scalia’s replacement, Judge Merrick Garland. Less well known is how Barrett got to the Court of Appeals for the Seventh Circuit: Republicans refused to act on the nomination of respected Indiana Supreme Court Judge Myra C. Selby, a Black judge selected by Obama almost a year before the 2016 election.

In the past, no matter who the president was, the pipeline for judicial appointments was wide and often bipartisan, reflecting the range of acceptable views in the mainstream of judicial thought. Not so anymore. With Barrett, as with Gorsuch and Kavanaugh, the administration has ceded — no, outsourced — the nominating process to the Federalist Society, an organization founded in 1982 to advance a conservative theory of law. Even before the president was sworn in, his campaign announced a “slate” of nominees which, as Ponoma College professor Amanda Hollis-Brusky describes, had been “curated” by the Federalist Society. Leonard Leo, cochair of the Federalist Society, approved the list, telling Trump, “That’s a great idea — you’re creating a brand.”

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As a judicial brand, this “undoing project” is not remotely conservative, in the usual sense of the word; it aims to undo decades and decades of American constitutional law.

Nancy Gertner, a former US District Court judge, is a senior lecturer at Harvard Law School.