Throughout this latest Supreme Court Justice nomination and confirmation process, which culminated in Monday night’s swearing-in of Judge, now Justice, Amy Comey Barrett, one of the refrains of the Left has been that the Court has gone too far right and no longer reflects “the population of the United States;” the Court and the courts are “out of touch with the preferences of today’s American population.” The Left demands that our courts “better represent the values of the American people.”
Even, the Supreme Court must act within those values and preferences alone because our Constitution itself has gone out of touch with the people.
One of the threats of the Progressive-Democrats is that they’ll stack the Court—add seats to it—to achieve that “balance.”
The Left misunderstands the role our Constitution has for American judges, and they misunderstand our Constitution’s design for our judiciary system within the Federal government which that same Constitution creates.
On the other hand, Progressive-Democrats use that misunderstanding in their cynical effort to redesign, without the will of We the People—the opening phrase of our Constitution that acknowledges that us American citizens are sovereign, not the Federal government or any part of it—our Constitution, that structure, and the role and operation of our judiciary system, intending to achieve this first by altering the purpose of our Supreme Court better to suit their ends in particular.
Contrary to the foregoing, our Constitution specifies a Federal government consisting of three coequal branches. Two of these are political: Congress and President who are elected by us citizens. These persons are elected for 2-, 4-, and 6-year terms, with elections every 2 years.
The third coequal branch—neither above nor below the political branches—is the judicial branch, whose judges and Justices are unelected and serve life terms, and who thereby deliberately are insulated from the vagaries of day to day, year on year politics—and as deliberately are independent of the political branches other than at the touchstone of (elected) Presidents nominating and the (elected) Senate confirming or withholding confirmation (with each of those answerable to us for their decisions).
From that, it should be clear that it is not the role of judges or Justices, in our system of governance, to reflect the changing values in society, even as those judges and Justices come from the society extant at the time of their nomination and confirmation. Judges’ and Justices’ role, rather, is to apply the Constitution and the relevant statutes in the cases that come before them, and no more or less than that. The courts represent the values of the people by applying the Constitution—ratified by the people and modified by us 27 times—as it is written and applying the statutes enacted by those whom we elect every 2 or 4 (for Presidents) years to represent us as those statutes are written.
It also should be clear from this that the deliberate separation of judicial behavior from political behavior requires judges and Justices to be originalists and textualists. Any move to reinterpret the text of this or that clause of our Constitution, this or that sentence or paragraph of a statute to reflect an individual judge’s or Justice’s understanding of the people’s current values is necessarily a political move, a usurpation of the role and purpose of the political branches. It’s a deprecation of, if not an outright attack on, that separation of the three branches from each other, that separation of powers of each from others.
Amy Coney Barrett at her swearing-in made this plain:
It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people.
Nor can they attempt to reflect the preferences of the people any more than they can reflect their own. The preferences of a judge or a Justice is what the text of our Constitution and our statutes say they are. No more or less than that.
It is exclusively the role of the political branches of our Federal government to reflect the mores, the desires of society, to reflect our values for those are political in their reach and are effected in the statutes enacted.
It is the role of We the People—us citizens—to adjust our Constitution as we see fit to reflect our values. And we do that slowly because our Constitution is our plan for governing well into the future, it’s not just a document codifying what’s happening today.
This will, of course produce rulings uncomfortable for Conservatives as well as liberals, especially given the respect for precedent an originalist/textualist judge or Justice must have. Nevertheless, the first and prior precedent, the precedent that governs all else—including the foolishness of the “super-precedents” to which even Barrett succumbs—is our Constitution.
The Left, as a whole, misunderstands. The Progressive-Democrats don’t care; the misunderstanding is just a tool for accruing political power through politicizing what is, by design, an agnostic judiciary.
