by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Ed Whelan writes for National Review Online about the potential long-term impact of Supreme Court nominee Amy Coney Barrett, if she wins confirmation to succeed Justice Ruth Bader Ginsburg.
“His judicial philosophy is mine too,” declared Amy Coney Barrett of her beloved mentor Antonin Scalia, at the White House ceremony for her nomination to the Supreme Court. Judge Barrett packed a lot of meaning into those few words. Her record, both as a judge and in her earlier career as a distinguished law professor at Notre Dame, shows both her profound commitment to Justice Scalia’s principles of textualism and originalism and her stellar ability to implement them.
As Barrett has explained, “textualism” and “originalism” are essentially two names for the same methodology, one arising in the field of statutory interpretation, the other in constitutional decision-making. The Constitution and statutes are legal texts, and the duty of the judge is to interpret their provisions according to the meaning they bore at the time they were adopted. Rival theories such as purposivism, pragmatism, and living-constitutionalism empower judges to ignore and override legal texts in order to impose their own solutions to the problems of the age.
“Judges are not policymakers,” Barrett explained in her White House remarks, “and they must be resolute in setting aside any policy views they might hold.” Judges have an obligation not to read their own personal convictions into legal texts, she has consistently emphasized, and that obligation is the same whether those convictions derive from their religious beliefs or from any other source.
Textualism and originalism deal with how people actually use language. Barrett has condemned as a canard the widespread view that textualism is literalism. As she notes, Scalia himself, for whom she worked as a Supreme Court law clerk, emphasized that “the good textualist is not a literalist.”