Weekly Column

On Monday, October 26, the Senate gave its consent to confirm Amy Coney Barrett as an Associate Justice of the U.S. Supreme Court. She is an excellent choice, and she will be a role model for young women across the country. Her life is proof of what women can accomplish, and her beautiful family shows that we can do it and keep balance in our personal lives.

I was honored to speak with Justice Barrett at the start of her confirmation process. The opinions she authored as a judge on the Seventh Circuit Court of Appeals show she is a strong originalist. This unwavering judicial philosophy sticks closely to the text of the Constitution, and this is evident in her opinions – whether on Second Amendment rights in Kanter v. Barr, or on Fourth Amendment protections against unreasonable searches in United States v. Watson. Justice Barrett assured me that she would continue to analyze the Constitution and our laws as they’re actually written, not as she wishes they had been.

That may sound like common sense. The Framers of our Constitution certainly wanted to guarantee enduring rights for Americans when they wrote our nation’s founding document. But when judges decide cases according to looser readings of the Constitution that might fit more conveniently with their personal beliefs, those rights can slip away.                                                                       

Some judges are proponents of a “living Constitution,” a progressive philosophy that adapts the Constitution to a judge’s personal values and ignores what it meant at the time it was written. This theory allows judges to reach the decisions they personally believe to be right and to overrule laws they believe to be wrong.

This can lead judges to do great evil in the name of justice, because as our nation’s history shows, a judge’s personal values can sometimes be deeply flawed. In the Supreme Court’s decision in Plessy v. Ferguson in 1896, a 7-1 majority of Justices ignored rights guaranteed by the Constitution’s text to reach the decision they preferred – upholding racial segregation laws. Many scholars believe this is one of the clearest examples of how living constitutionalism can lead to unjust outcomes. 

Justice Barrett is an originalist, which means she applies the Constitution as it was written. Originalists follow the law wherever it leads – a commitment made to me by Justice Barrett in our private meeting.

In her confirmation hearing, Justice Barrett rightly pointed out that the meaning of a law doesn’t change over time to reflect popular opinion. The law must remain intact, and upheld by the courts, until it is changed by the American people’s elected representatives. “Otherwise, judges would be in the Constitutional convention business of updating the law rather than allowing the people to take control of that,” she said.

Originalism can be unpopular among judges and lawyers partly because it makes them less important. Instead of empowering them to decide cases according to their own ideology, as living constitutionalism does, originalism restricts judges to the role of interpreter.

Justice Barrett understands this, and that’s why I was proud to vote for her confirmation. Her confirmation strengthens the integrity of the Supreme Court and its role in our system of government. She will be an exceptional Justice, and I look forward to following her on the Court for decades to come.

Thank you for participating in the democratic process. I look forward to visiting with you again next week.