The real problem with the Barrett confirmation debate

Amid all the uproar of 2020’s contentious presidential election race, the country now finds on its plate another Supreme Court nomination, to fill the seat of the late Justice Ruth Bader Ginsberg.

As the New York Times’s Adam Liptak put it recently, “Judge Amy Coney Barrett, President Trump’s pick for the Supreme Court, has compiled an almost uniformly conservative voting record (emphasis added) in cases touching on abortion, gun rights, discrimination and immigration. If she is confirmed, she would move the court slightly but firmly to the right, making compromise less likely and putting at risk the right to abortion established in Roe v. Wade.”

The real problem at the root of this concern is the false assumption that constitutional interpretation falls into “conservative” and “liberal” categories.

It doesn’t.

More precisely, it shouldn’t.

How, then, have we come to view the virtually life-tenured Supreme Court as simply a nine-person national legislature? The answer is that members of the Supreme Court itself, especially since the Warren Court of the 1950s and 60s, have decided that all constitutional interpretation involves political considerations. They are half-right: Justices ignore political reality at their peril. But some have leapt from this common-sense observation to a full-throated, indefensible equation of judicial interpretation with political legislation.

The growth of the U.S. Supreme Court into a super-legislature is the opposite of what America’s founders intended. To see this, we need look only at The Federalist, written by Alexander Hamilton, James Madison, and John Jay during 1787 and 1788 to explain and defend the proposed Constitution. No less an authoritative observer than Thomas Jefferson proclaimed The Federalist to be the most reliable source of “the genuine meaning” of the Constitution.

In the famous Federalist 78, Hamilton addresses the concern that the new Constitution creates a too-powerful national judiciary. Hamilton writes, “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous (emphasis added) to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

Hamilton’s blithe assurance is jarring today, given our view that the Supreme Court is the “court of last resort.” (It’s not. A Supreme Court decision can be overturned by a constitutional amendment, which has happened in the past.)

Why was Hamilton so confident? He tells us next: “The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse . . .  It may truly be said to have neither FORCE nor WILL, but merely judgment…”

How has the Supreme Court been able to drift so far from the Founders’ intentions for it? It has been noticed that the Court did not exactly “steal” its powers from Congress. Quite the contrary: Congress has gladly allowed — even welcomed the Court’s expansion.

Why? The first and foremost goal of virtually all elected leaders is to get reelected. But getting knee-deep in contentious issues, such as abortion, threatens their reelection chances. They prefer to be able to rail at the Court for this ruling or that ruling, and then to throw their hands up and sigh, “Well, the Court has decided. There’s nothing I can do” — which means, “keep electing me anyway.”

In much the same manner, and for the same reason, some of our U.S. senators and representatives routinely complain about the “unaccountable bureaucracy in Washington.” Of course, they’re right, but how did the bureaucracy grow so large and “unaccountable”?

The answer is that, as Congress expanded its own powers over the past century, it began to take on tasks that were both usurpations of state’s powers under the Constitution and, in the process, found itself no longer able to monitor its ever-growing activities. Hence, Congress itself delegated these powers to the federal bureaucracy that Congress itself created.

The result? Whereas James Madison’s scheme for a separation of powers depends on “ambition counteracting ambition,” that’s not what’s happened. Instead, Congress has happily accepted the Court’s “theft,” believing that, by reducing itself — that is, hiding for cover — it can better ensure its members’ reelection. The quest for short-term power and security has been bought at the cost of fidelity to the Constitution and the limited government for which the Constitution calls.

All of this goes some way to explain why the confirmation of a single Supreme Court justice commands so much attention today. To prove this, consider the fact that, before 1955, there were no confirmation hearings held by the Senate for federal judicial nominees. Instead, all that was done was what the Constitution required, which was simply that the President nominates, and the Senate confirms — or not. It’s not accidental that hearings became the norm at this time, and not earlier, for in earlier times, the Court came closer to embodying the “least dangerous branch” that the Founders intended it to be.

So while the current battle over the Barrett nomination has focused on a number of substantive issues, the deeper battle that explains our national hullabaloo over each Court nomination is the question whether and to what extent we citizens will continue to surrender the democratic process to nine unelected justices.

We have reached the stage that Thomas Jefferson warned us against — what he labeled “judicial oligarchy.”

In short, Supreme Court confirmations have “gone wildly political” because judicial interpretation went there first.

Tom Lindsay, Ph.D., is distinguished senior fellow of higher education and constitutional studies at the Texas Public Policy Foundation.