Let me start out by saying this: I don’t trust anyone in government and I especially don’t trust anyone in the judicial system. Am I happy about Amy Coney Barrett? Without doing any research, my answer is “eh, I’m not really happy about any Supreme Court Justice or appointee”. She’s just going to join the panel of eight royals we have right now, legislating from the bench and slowly eroding and destroying the Constitution. I don’t expect her to buck that trend. She may vary on a few cases here or there, but she’s still going to become part of the problem.
Here’s the thing, I’m confident that in a few days, Judge Amy Coney Barrett is going to become Justice Amy Coney Barrett. So, this article does little to change anything. Really, I’m writing it to merely help educate you and me about the next justice to be joining the powerful ranks of the Supreme Court. I should, we should, analyze all of our Supreme Court Justices so we know who we’re dealing with. I’ll say this: from what I do know of them, I believe Clarence Thomas is perhaps the only individual currently on the bench that has any real respect for the Constitution.
Perhaps, if the citizenry was more educated and aware, we could slightly influence who the president nominates and who the Senate confirms. But we aren’t educated and aware so we simply back anyone who seems to remotely resemble our ideological inclinations.
As it stands today, conservatives seem to blindly support any nomination who is considered more conservative and liberals seem to blindly support any nomination who is considered liberal.
I write this post to at least strip away the blind support and provide both you and I an educated understanding of the nominee who is sure to be confirmed. If we leave this post disapproving, there’s nothing we can do to change the trajectory of things, but at least we have a better idea of what to expect.
First Impressions: Senate Hearings
As I previously stated, I don’t know a whole lot about Amy Coney Barrett, so my first real experience with her has been watching the Senate hearing.
Watching her yesterday in the Senate hearings, it’s hard not to appreciate her composure and general bearing. She clearly has a solid grasp of the law and of precedent, while also understanding the game of politics. On a purely human level, I like the way she comports herself as she respectfully but firmly interacts with belligerent Senators. She knows what she’s talking about. As far as optics go, it’s a good look for the Supreme Court.
Is she qualified? I don’t think there’s any question.
One thing I did pick upon while watching her: she’s her own person. She clearly has her own agenda and her own method of dealing with law, precedent and cases. This is all fine, as she should be her own person. However, while I don’t have any evidence to support my gut feeling, something tells me she’s not a fan of this administration.
Her religious and ideological tendencies really shouldn’t matter, so I’m not going to discuss that.
Precedent
So, what I have noticed, in both the Senate hearings and in my research, is that Barrett relies heavily on precedent.
Here’s the definition of precedent: “Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. Precedent is incorporated into the doctrine of stare decisis and requires courts to apply the law in the same manner to cases with the same facts.”
Precedent makes sense legally, especially when it comes to criminal cases. It wouldn’t be ideal for the courts to punish one criminal differently than another, if they both committed the same crime. There should be a semblance of equality of treatment there.
Of course, there’s nothing Constitutional or Constitutionally mandated about precedent. It is purely a creature of the court.
Because it is a creature of the court and not tied to any higher law, it is very arbitrary, tied merely to preceding cases and used, many times, as a way to shield from dealing with the issue at hand. “Well, this previous case stated this so… that’s it.” This is not always the response, but many times, it is.
The problem is that the Court and the courts treat precedent with more respect, in many cases, than the Constitution itself. In other words, Justices and judges rely more on the support of precedent for their decisions than the text of the Constitution. Of course, sometimes, the precedent they are relying upon is the interpretation of the Constitution itself, but if you read dissents and opinions from strict Constitutionalists, the act of re-interpreting the Constitution is, in itself, Constitutionally questionable.
Here’s the thing. I’m not a judge and I’m certainly not a Justice. I don’t know the ins and outs of law like those on the Supreme Court or any federal court know the law.
What I do know is the Constitution and the point of the government when it was founded as well as the intentions of the founders. Unfortunately, the Justices, throughout history, have completely missed the goal and the point of the Constitution—-which is to confine the federal government. Instead, they have turned the Constitution into a game, stretching and re-writing it in every which way to empower themselves and the other branches of the federal government.
Because Barrett relies so heavily on precedent, I don’t see her as a unique advocate for the Constitution. Rather, I see her as a slightly more conservative Justice who may, at times, protect the Constitution, and at times, violate it.
The Good
Watch the video below for a peek into Barrett’s understanding of the law and a judge’s adherence to it. She makes the point that judges wear a black robe to symbolize that the individual wearing the black robe doesn’t matter. The individual, her beliefs or personal preferences, don’t matter—rather, the law matters. All judges represent the universal, unchanging nature of the law.
Judge Barrett claims to be an originalist. In her own words, she explains: “In English that means that I interpret the Constitution as a law,…and that I interpret its 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.” This quote is from her recent questioning by the Senate judiciary committee.
An originalist or textualist, when it comes to the Constitution, is simply someone who attempts to hold up the Constitution as it is, rather than infuse the Constitution with the ideologies of today. In other words, it’s not necessarily a living Constitution and the intent of the founders matters. I’d prefer someone like this to someone who sees the Constitution as a mere guide rather than the law.
Judge Barrett’s record on some specific cases is promising. She did not approve of qualified immunity or unwarranted searches and seizures in a few specific cases, although she did side with the government in many other similar cases.
As far as abortion and government run healthcare go, my advice to you is, don’t hold your breath. She has had a record of upholding restrictions on abortions at the state level (likely due more to issues of state sovereignty than abortion), but from what I’m learning about her, I don’t foresee her personal dislike of abortion changing her strict adherence to precedent.
While she does preach the supremacy of the law and the Constitution, she also holds precedent in high regard. I don’t expect any change in abortion or the Affordable Care Act as a result of her appointment to the Supreme Court. In fact, she may vote in favor of these issues simply because of precedent.
In the realm of the Court, overturning precedent is a big deal.
The Bad
When it comes to Fourth Amendment and First Amendment violations or issues of civil rights and immunities, Barrett has a history of siding with government. According to Constitutional Attorney Robert Barnes, Barrett’s record regarding this issue is very concerning. For example, in Price vs. Chicago (2019), Barrett ruled in favor of the government against the individual rights of the citizen. Read the case for yourself, but the precedents that have been allowed regarding the police and the American citizenry are very concerning.
I support our police, but I’m also wary of a police state—much like we see occurring under the coronavirus mandates. We need a government and courts who will protect the citizenry from any part of the police force who is willing to enforce unconstitutional laws or violate our Fourth Amendment rights. Barrett doesn’t appear to be one who will do this protecting.
Further, Barrett has upheld coronavirus lock-down mandates that are highly unconstitutional (primarily at the state level).
From the Strident Conservative website: “Barrett concurred with the majority in Illinois Republican Party et al. v. J.B. Pritzker, Governor of Illinois to keep an illegal lock-down in place, effectively shredding the Constitution in the name of so-called safety. Barrett hid her support behind the precedent established in 1905 in Jacobsen v. Massachusetts to avoid taking responsibility for her decision.”
Conclusion
Like everyone, Barrett has some positive traits and negative traits. She’ll tip the Court slightly to the right, but no more than slightly. Don’t be lulled into believing that when someone enters government they’ll be the one individual that bucks the trend and says no to power.
All of them want power and Amy Coney Barrett, a fine woman and a fine judge, will join the ranks of an ever growing, powerful Supreme Court and it’s highly unlikely she’ll do anything to change that.
Take what you can get.
Hey, at least she’s not another Ginsberg.
The Liberty Belle