Judicial confirmation hearings are not very entertaining TV. Nominees usually pledge allegiance to the “law” while avoiding statements about what the “law” is, or even how to define it.

Yet Supreme Court nominee Judge Amy Coney Barrett and her supporters claim that she is an “originalist”: they say she interprets statutes (including the Constitution) according to the evinced intent of their “drafters” — those people who wrote, amended or merely signed off on the law. 

To some, Judge Barrett’s originalism means that she can be expected to voice similar opinions
those of the late Justice Antonin Scalia, for whom she clerked, and whose socially-conservative opinions were attributed — by his supporters — to originalism.

But originalism more generally — and these jurists’ originalism in particular — often masks something else. Some originalists focus on how the text of the law was understood when it was drafted (as Judge Barrett claims to do). Others look for clues about what was intended by examining the events surrounding the drafting of the law instead. All originalists are similar, however, in claiming that the meaning of any law is (and can be) fixed upon its enactment, before the Court applies it to the facts of a specific case. This “conservative” judicial philosophy rails against judicial “activism” — judicial legislating — which might threaten our crucial separation of powers.

And that’s a laudable goal, promoting our Constitutional design. 

But judges often use originalism to justify discarding judicial interpretations which depart from their personal understanding of a law’s “original” meaning, reaching back to earlier interpretations they prefer, or claiming new ones. Indeed, many wonder whether originalists truly expect to discern the intent of multiple drafters, especially those who ratified the U.S. Constitution. Moreover, it seems unlikely that an originalist could do so from the Constitution’s text alone. Anyone reading it will notice that the Constitution left a lot to the imagination. It has an open style, inviting the thoughtful interpretations which would be necessary to decide the many specific disputes presenting themselves to the Court during the United States’ evolution.  

So, whatever else the U.S. Constitution might have intended, it intended the interpretation of itself. That is why our Constitutional history is one of meticulous, ongoing interpretation. 

For example, the Fifth Amendment’s language did not itself require that Miranda rights be read upon arrest in order for a prisoner’s statements to be admissible in court against them. That was instead inferred in the case of Miranda v. Arizona (1966), because otherwise the right not to testify against oneself would have had, in effect, no meaning. Even the fundamental principle of “judicial review” — the authority of the Supreme Court to decide what the Constitution means — was determined, not by the Constitution’s text, but by the judicial opinion of Marbury v. Madison. And even Judge Barrett admitted during hearings that Marbury counts as constitutional law.  

Moreover, there are checks on the courts’ power beyond originalism. The courts can only adjudicate active disputes; they cannot legislate as they choose. And the courts must guarantee “due process,” which requires that like cases be decided alike, thereby clarifying (rather than obscuring) notice of the law. For the same reason, the Court should overturn its own precedent only when it can say convincingly that the precedent was a red-flag outlier in its otherwise cohesive explanation of Constitutional law. These self-constraints already reflect the “original” intent of the framers.

The devil of originalism, then, lies not in its theory, but its details: What “original” meanings will Justice Coney Barrett claim?   

As U.S. Judge Nancy Gertner recently noted, “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.” 

Judge Barrett’s “predilections” are clearly politically conservative. For five years before taking the bench, she was a member of the Federalist Society — a libertarian group aiming to change law, by training and seating conservative judges. She criticized a recent 5-4 decision barely saving the Affordable Care Act from challenge on a mere technicality. Furthermore, Judge Barrett has signed a citizen statement to oppose abortion on demand, asserting that there is a “right to life” from the time of fertilization. As a judge, she then urged reconsideration of an opinion resting squarely on the Constitutional right to abortion — suggesting that she may not think that there is any such a right. 

Though she said at confirmation hearings that Marbury v. Madison was a binding precedent, she repeatedly dodged a senator’s effort to secure her similar allegiance to Griswold v. Connecticut (1965) — the crucial decision, building on Justice Louis Brandeis’ famous words, finding a right of privacy within the Constitution’s Bill of Rights, though “privacy” appears nowhere in its text. Indeed, it is troubling because the Court’s recognition of “privacy” was a prerequisite to the rights to use birth control, engage in same-sex sexual relations and have abortions. Other conservative justices now on the Court have suggested that they would revisit the underpinnings of “privacy.” Assuming that Judge Barrett is seated (and that seems likely), those who want to save federal welfare legislation and “privacy” have few options. The Supreme Court’s conservatives are relatively young, with life tenure.   

To some, the answer is “packing the court,” if Democrats win control of the Senate. It is not the Constitution, but rather Congress, which sets the number of seats on the Supreme Court. And that number does not have to be nine. Congress could make it 13 or more — an idea proposed by President Franklin D. Roosevelt when the Supreme Court’s right wing repeatedly blocked social welfare legislation needed to address the Great Depression of the 1930s. That might let Democrats restore ideological balance to the Court, but could invite retaliation with each political shift, eroding the Court’s persuasive power.

In the 1930s, however, the mere threat of “court-packing” may have saved the day. Perhaps to preserve their power on the Court, two conservative justices changed their positions — affecting the “switch in time which saved nine” — before “court-packing” reached a vote in Congress.   

Today’s Court could feel similar pressure if Democrats sweep the 2020 election. So our government might yet check and balance itself, as intended originally. As usual, the best course for any concerned citizen is to vote.

Sharon Fray-Witzer, Esq., is an adjunct instructor in Legal Studies and Philosophy, and an appellate lawyer who files pleadings to the Supreme Court.