This snippet just showed up in my email (courtesy of the Boston Globe):
Supreme Court nominee Amy Coney Barrett declared Monday that Americans “deserve an independent Supreme Court that interprets our Constitution and laws as they are written,” encapsulating her conservative approach to the law that has Republicans excited about the prospect of her taking the place of the late Justice Ruth Bader Ginsburg before Election Day.
Now, I know this is coded talk. The idea of a close and literal reading of the U.S. Constitution and related laws is meant to tell conservatives that she is not an activist, that she is not liberal in any way. But it also means that she’s mainly, in a bizarre way, a clerk rather than a judge — if her statement was meant to be the truth, the whole truth, and nothing but the truth. But it isn’t.
Barrett is spouting half-truths, since conservative judges are just as activist as their liberal counterparts on the bench. They simply disguise their activism using terms like literalism, which is “strict” and “conservative” and allegedly in keeping with what the Founders intended, as if we can be mind-readers. And even if we could be mind-readers, hasn’t the world changed a lot in roughly 250 years?
Look, I’m a historian, not a lawyer. I’m no expert on judging the law, but I can view the law in historical terms. And in those terms the law is organic, not static, as is our understanding of it. Put differently, the law should be made and remade for us, not we for the law. Because we’re human, we’re imperfect, the societies we create are imperfect, and so too are the laws we create.
Our goal should always be to form a more perfect union, to grow in understanding and compassion. Such is also true of the law. If all these judges do is to issue rulings simply on what is written in the documents before them, why do we even need a Supreme Court?
A static system of laws based on the writings of men who lived 250 years ago is not only unwise: it’s inhuman. Even the law is dead in America.
I used “literalist” when “textualist” and “originalist” seem to be the preferred terms for this judicial approach.
But judicial literalism echoes the Biblical literalism that is consistent with this judicial approach: the idea the Bible, like the law, should be read plainly, literally, based on the text, with no changes based on new scholarship.
It’s a mindset, an alleged quest for certainty through “simple” readings, but what it’s really all about is a deference to authority figures in the here-and-now who claim to know how to make these “simple” readings. And when they do, these readings are always in their favor.
Surprise! God favors a conservative patriarchy, just as the law does. Who knew?
Update 2 (10/14/20)
It beggars belief that an educated adult in America would have no firm opinion on climate change. Heck, even Trump has admitted there’s a human component to the same. But Amy Coney Barrett says she has no “firm views” on climate change; meanwhile, her father has been a lawyer with Shell Oil for decades. And a major case involving Shell on climate change is pending before the Supreme Court. Coincidence? See this article by David Sirota & Co.
What’s sad about these sham senate hearings is how nominees like Kavanaugh and Barrett end up effectively perjuring themselves with their answers. I know: I’m not a lawyer and technically it’s probably not perjury. But they essentially answer questions dishonestly in their quest to be confirmed. Here’s an example:
Finally, a friend made two fine points about Barrett. The first is she’s smart with the law; the second is she’s a person of faith. But what kind of smarts, and what kind of faith? Smarts that are limited, uninformed by compassion and an appreciation for the human condition, can be sterile. Faith that is rigid and shaped by a patriarchal church can be hidebound, conveying certainty and a holier-than-thou attitude.