Holding opposed ideas
Why I support Amy Coney Barrett’s nomination and packing the court
The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain our ability to function.
F. Scott Fitzgerald
I’m challenging each reader to let go of their preconceived notions and see if we can hold two opposing ideas in mind and still retain our ability to discuss things constructively. The two opposing ideas:
I support Amy Coney Barrett’s nomination to the Supreme Court because I believe a) her nomination is consistent with the democratically exercised will of the people and b) I agree with her jurisprudential approach.
If the Democrats win the House, the Senate, and the Presidency, I support packing the court with additional justices (with whom I will likely not support their judicial approach) because this will reflect the will of the people.
1.a. Amy Coney Barrett’s nomination is consistent with the democratically exercised will of the people.
Our government is a democratic republic. We the people elect representatives who then determine the laws and policies governing our nation. Each democratically elected representative is meant to serve the interests of their constituents. The process by which we nominate and confirm Supreme Court justices is through the Senate and the Presidency.
Regardless of beliefs, we must admit that we voted in a Republican Senate and a Republican as the President. They were confirmed for the entire duration of their terms, not through September 2020. Therefore, if they have the votes, which it seems they do, they should have no compunctions about nominating and confirming a justice to the Supreme Court. We democratically elected these representatives and they are doing their job. Honestly, if I were a Republican Senator, I would be doing the same thing.
I know what you’re thinking – what about Merrick Garland?
In Merrick Garland’s case, the Republicans controlled the Senate with a Democratic President. In that case, Garland was nominated but not confirmed for over 8 months. Again, we democratically elected a Senate that chose to act in that way. They were our representatives at the time. If I were a Republican Senator, that’s not what I would have chosen to do, but that doesn’t make their choice intrinsically wrong. In fact, their choices are meant to reflect the democratic will of their constituents…so, in some ways, we should expect them to be replaced if they were doing a poor job. The fact that the Republicans continue to control the Senate is a minor point of evidence that their constituents believe that these Senators did indeed reflect their will.
1.b. I agree with Amy Coney Barrett’s jurisprudential approach.
We have a Supreme Court that serves as the ultimate adjudicator of issues of federal law. We tend to think of our justice system in terms of outcomes, not process. As laypeople, we hear a court’s decision and decide if we agree with the outcome, not the underlying reasoning.
Fundamentally, however, the major difference between judges tends to be on the reasoning. Actually, the process by which they choose to apply reason.
During her hearings, Judge Barrett referenced the fact that she is not meant to be Solomon. Famously, Solomon applied his wisdom to resolve the dispute between two women claiming to be the mother of a child. Solomon was not applying a law – he was trying to determine a just outcome. (Reminder: he determined the child ought to be cut in half and split between the two and the woman who was grief-stricken and said the other one could have the baby was determined to be the true mother)
Judge Barrett, and those who come to the bench with an originalist, textualist approach, would argue that is definitively not the role of our judiciary. Judge Barrett has said,
The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People.
Of course, justices that support a “living Constitution” might agree with Judge Barrett’s sentiment but disagree that originalism is the approach to doing so. I, however, don’t find that logic compelling. I see a classic slippery slope - choosing to interpret laws to consider the current societal implications seems much closer to Solomon’s wisdom than it does to a court faithfully applying laws.
But what’s wrong with Solomon’s Wisdom? Isn’t that a classic tale of justice well-applied? Yes, but there’s a reason that his tale lives so long. It’s because it’s so rare for an individual to be able to apply justice in a way that’s universally accepted. Trusting individuals to determine what is just can go awry a lot more easily than it can be done well. In my eyes, we should not be trusting nine justices (not democratically elected, with lifetime appointments, often very old) with the ultimate determination of justice in our land.
I recognize that a court applying an originalist approach will reach decisions I don’t agree with in many cases. Decisions that I believe are fundamentally unjust. Yet, I agree with Judge Barrett that it is our political branches that must remedy these issues, not our judiciary.
Judges cannot just wake up one day and say, ‘I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world.
In our democracy, I agree.
2. If the Democrats win the House, the Senate, and the Presidency, I support packing the court with additional justices (with whom I will likely not support their judicial approach) because this will reflect the will of the people.
If the 2020 election results in Democratic control of the House, the Senate, and the Presidency, that will be a fundamental exercise of the will of the people. The court-packing issue has been raised and is well known to voters.
I would expect a Democratic congress and Presidency to not just enact laws that reflect their policy will but to enact laws that change the composition of our judiciary to support the possibility their policies are upheld in court. (Sidenote: In my naïve mind, I do believe that fairly-enacted laws that do not violate the Constitution will be upheld by originalist, conservative judges regardless of their political or moral leanings).
There’s nothing in the Constitution that determines the size of the Supreme Court. Congress has passed multiple laws determining the size of the court, the most recent being in 1869. FDR had a plan in 1937 to pack the court that was ultimately rejected by the Senate. So, there’s nothing precious or sacred about the number of justices we have on the Supreme Court.
Therefore, I am fully supportive of increasing the number of justices should the Democrats have the votes to do so after the upcoming election. Even though Democrats would likely nominate and confirm justices that I disagree with philosophically, I believe that they will be reflecting the democratic will of the people in the same way that Judge Barrett’s nomination does today.