James Heilpern: We need textualists like Barrett on the Supreme Court

Supreme Court nominee Amy Coney Barrett arrives for a confirmation hearing before the Senate Judiciary Committee, Wednesday, Oct. 14, 2020, on Capitol Hill in Washington. (Jonathan Ernst/Pool via AP)

With the Supreme Court confirmation hearings of Judge Amy Coney Barrett taking place this week, Democratic senators are sure to attack her textualist approach, just as they did with Justices Brett Kavanaugh and Neil Gorsuch before her. But in doing so these senators will reveal more about their own judicial philosophy than Judge Barrett’s.

The Democratic senators will insinuate that Judge Barrett will interpret the law according to her Catholic worldview or conservative political beliefs because that is exactly how they believe judges should behave ― as political actors who decide cases based on what they think the result should be.

Not so with textualists. Textualists set aside their own political, moral or religious beliefs in favor of the actual words on the page. As Barrett herself has explained: “A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

At its core, textualism is about respecting the separation of powers between the legislature and the judiciary. Congress makes the law. It does the hard work of balancing competing policy views and transcribing that compromise into written English. Whether Congress struck the proper balance, whether lawmakers got it right in some morally objective sense of the word, is not for a judge to decide. Unless a law violates the foundational rules laid out in the Constitution itself, a textualist judge respects the decision made by Congress by applying the law as it is written. That promotes democracy.

Many liberal judges believe that this focus on the text is lacking in imagination, that judges should instead seek to discern what Congress intended to do by giving priority to the secondary documents that were produced alongside the actual law and that they argue reveal congressional purpose, or “legislative intent.” These sorts of secondary sources might include speeches given on the Senate floor, committee reports, or presidential signing statements, and collectively they are referred to as “legislative history.”

But this search for legislative intent ignores that Congress is not a single entity. Congress has no singular collective intent: It is composed of 535 different legislators, elected in 535 different elections, representing 535 distinct constituencies, and motivated by 535 different reasons. As Judge Barrett explained, “It is extraordinarily difficult ― if possible at all ― for a court to glean what was ‘really’ going on behind the scenes of a statute. A legislature is a multimember body, and different members may have different motives.”

Think of a group of people choosing a restaurant. Was there a singular “intent” that explained how they wound up at Olive Garden? Maybe Bill pushed for Olive Garden because he’s partial to the breadsticks. Ethel agreed because she wanted the unlimited soup and salad. Larry supported the decision because he’s in love with Ethel, and Frank was so hungry he would agree to anything.

The same is true for Congress. Representatives and senators vote for the same bill for vastly different reasons. But the only thing a majority of Congress ever agrees on is the actual text of bills that are passed by both houses and signed into law by the president. That text is therefore the only authoritative source of congressional intent.

Democratic senators have a long track record of opposing textualist judicial nominees, and it is no mystery why. Their M.O. has long been to use the courts to advance their policy preferences, and judges who promote democracy by applying the law as written by Congress stand in the way of courts behaving like super legislatures. The only legislatures that should govern the people are the ones they elect.

Senators voting against Judge Barrett are voting to give away more of their power to unelected judges, something voters should not tolerate. In that sense, her confirmation vote will be a referendum on democracy itself. Let’s hope, for our country’s sake, that it passes.

James A. Heilpern

James Heilpern is president of the Judicial Education Institute and a senior fellow at Brigham Young University’s law school.

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