Democrats are terrified that the Supreme Court will return to deciding cases based on the clear meaning of the Constitution and the laws duly passed by Congress, rather than usurping power to ram through a leftist agenda in the name of preserving “rights” the Founders had never conceived of. Yet Americans aren’t exactly keen on handing unlimited power to nine super-legislators in black robes.
In order to prevent a restoration of the Supreme Court’s proper role in America’s constitutional republic, Democrats have to hide their true intentions. They have to convince Americans that originalism does not mean a return to the Constitution’s rules of fair play but rather something else. No Democrat has proved quite as shameless as Sen. Ed Markey (D-Mass.) in this regard.
In the hours leading up to Amy Coney Barrett’s confirmation on the Supreme Court, Markey attempted a massive Orwellian lie about the meaning of originalism.
“Originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination,” Markey tweeted.
Originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.
— Ed Markey (@SenMarkey) October 26, 2020
This is gaslighting at its finest, and I’d bet most Americans are too smart to get snookered by it.
Most Democrats would not attack originalism in this brazen of a fashion, but much of their complaints about Amy Coney Barrett’s judicial philosophy boil down to exactly this argument.
Democrats see the Supreme Court as a kind of super-legislature, using the Constitution as a tool to drag history forward. They look back on Roe v. Wade (1973) and Obergefell v. Hodges (2015) as positive steps toward progress rather than gross abuses of the Supreme Court’s power. Democrats supported the Court inventing new “rights” out of whole cloth because those rights involved abortion and same-sex marriage. The end justified the extremely unrepresentative means.
Democrats love to complain about how the American system is undemocratic. Donald Trump won the presidency without the popular vote. Each person’s vote matters more in small states. The Senate doesn’t represent the will of the aggregate of the American people, so #AbolishTheSenate!
Yet the Founders had good reasons for balancing the way Americans are represented in the different parts of the federal government. The democratic will of the people has the final say, but it is mediated through different institutions. Congress, which the Founders made the most powerful branch of government, directly represents the people at the district and state levels. The president, who enacts the laws Congress made, must win the vote of individual states, not just a bare majority of the country.
For all their talk about democracy, Democrats actually want the least democratic branch of government to unilaterally make the law by reinterpreting the Constitution. They don’t want states to make their own laws on abortion. They don’t even want Congress to make laws on abortion. Instead, they want the Supreme Court to declare a fundamental right to abortion — precisely because Supreme Court justices cannot be voted out of office.
Laws on the state or federal level would better represent the actual will of the people, but Democrats want the Supreme Court to effectively make law because the Supreme Court does not have to face the voters every two, four, or six years. Those pesky evangelical Christians who don’t want their taxes to fund abortion or who want to be able to opt-out of celebrating same-sex marriage can vote out congressmen, senators, and presidents, but they can’t vote out Supreme Court justices.
This accountability to voters requires legislators to compromise on various issues and to balance the broad interests of the electorate as a whole. Representation not only makes the lawmakers accountable to the voters but it also requires them to work with people on the other side of contentious issues. Unilateral Supreme Court dictats have no such limitation.
The Democrats want the Supreme Court’s rulings on abortion and same-sex marriage not just to have the status of law but of constitutional amendments, without those rulings having to go through the onerous process of amendment the Founders actually wrote into the Constitution. Democrats want their key issues to be enshrined in law and off-limits to any reform.
Therefore, Democrats want to brand every attempt to restrain judicial activism as some form of hateful discrimination against some minority or another. Because originalism means the Supreme Court should not unilaterally amend the Constitution in favor of Democrats’ preferences on race-based voting rules, originalism is “racist.” Because originalism means the Court should not create the right to abortion, originalism is “sexist.” Because originalism means the Court should not create same-sex marriage, originalism is “homophobic.”
This is out-and-out nonsense. Originalism does not entail a position on issues like voting rules, abortion, or same-sex marriage. Instead, originalism dictates that Supreme Court justices should follow the Constitution and the laws Congress passed in order to decide cases, rather than rewriting the Constitution to achieve the result justices prefer.
If the Supreme Court rules against abortion, Congress or the state legislatures can pass laws in response. In fact, that is how the Religious Freedom Restoration Act of 1993 came to pass. Both Republicans and Democrats were outraged at the Court’s decision in Employment Division v. Smith (1990), which upheld Oregon’s refusal to give unemployment benefits to two Native Americans fired from their jobs after taking peyote in a religious ceremony. Congress and the president passed a law specifically to reverse this abrogation of religious freedom, and subsequent Supreme Court cases have built on this interpretation of the First Amendment.
Originalism is not racist, sexist, or homophobic. Originalism is also not anti-racist, anti-sexist, or anti-homophobic. Originalism is about following the rules of the game, not allowing nine robed super-legislators to unilaterally rewrite them according to their own whims.
The Supreme Court’s newest justice, Amy Coney Barrett, put it well in her acceptance speech Monday night.
“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,” Barrett explained. “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 in to them. Federal judges do not stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people.”
She argued that the judicial branch is distinct from Congress and the presidency because of this “separation of duty from political preference.”
“A judge declares independence not only from Congress and the president but also from the private beliefs that might otherwise move her,” Barrett argued. “The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences.”
Nothing in Amy Coney Barrett’s brief Supreme Court acceptance speech was racist, sexist, or homophobic, but the speech perfectly encapsulated the spirit of originalism.
Barrett’s acceptance speech gives the lie to Markey’s asinine accusations against originalism, and it sets the record straight on this fundamental issue. Those who support originalism are not trying to sneak in their policy preferences through a backdoor. Instead, they are trying to prevent the Supreme Court from abusing its power the way the Court did in Roe and Obergefell.
The fact that Democrats cannot stand this return to judicial normalcy should terrify the American people. Democrats are openly scheming to pack the Supreme Court, adding more justices in an attempt to preserve the Court’s abuses of power. Democrats don’t just want the Court to rule in favor of their issues, they want it to circumvent the legislative and amendment processes plainly laid out in the Constitution in the rush to far-left policy goals.
Americans must reject this vision of unilateral judicial activism.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.