Amy Coney Barrett, Originalism, and the Supreme Court

November 03, 2020 by G.W. Schulz

It’s nearly impossible to imagine seeing an arrest take place on TV without the familiar words: “You have the right to remain silent. Anything you say can and will be used against you.”

This little bit of TV drama is rooted in a real legal principle known as the Miranda warning. But, no law was ever passed requiring police to give this warning.

Instead, a 1966 ruling by the Supreme Court in Miranda v. Arizona held that Americans must be read their rights by police prior to interrogations. These rights include remaining silent and contacting an attorney, rights now generally known as “Miranda rights.”

While the Supreme Court may not get as much attention as the President and Congress, it’s decisions - like Miranda - are deeply ingrained in the fabric of our everyday lives.

“Liberal” and “Conservative” Justices

It’s tempting to apply labels like “liberal” or “conservative” to Supreme Court Justices in the same way we do for politicians. But, Justices have the unique responsibility of interpreting laws and the Constitution independently of their political views.

So, when Supreme Court Justices are described as conservative or liberal, we’re not talking about their political affiliation. We’re really referring to how they interpret the Constitution. Conservative Justices tend to interpret the Constitution based on the original understanding at the time it was adopted, a concept known as “originalism.” Liberal Justices tend to adopt the opposite tact, asserting that the Constitution is a living document and should be interpreted based on today’s values, even if that interpretation differs from the original interpretation.

The nature of this distinction has famously made mavericks of Supreme Court Justices throughout American history. Prior to his confirmation in 1939, Justice Felix Frankfurter had a liberal-leaning reputation. As a Supreme Court Justice, however, Frankfurter irked liberals by frequently siding with conservatives on government restrictions on civil liberties.

President Richard Nixon similarly considered Justice Harry Blackmun to be an ally of his own politically conservative views when Blackmun was appointed in 1970. Blackmun later penned the majority opinion in Roe v. Wade and generally became known as a more liberal-leaning voice on the Court.

So who is Amy Coney Barrett?

Before being appointed to the Court, Barrett was a law professor at Notre Dame and Federal Appeals Judge. Early in her career, Barrett served as a Supreme Court Clerk for and protege to the late Associate Justice Antonin Scalia. Known for his firmly held “originalist” views, Scalia believed legal interpretations should be more rigid than fluid.

In a September speech, Barrett called Scalia’s influence “incalculable” and said “his judicial philosophy is mine too: 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.”

Barrett’s appointment cements a strong conservative majority of 6-3 on the Court.

Barrett’s time as a Judge

The time Barrett served as a Judge before being appointed to the Supreme Court is quite short. That means fewer rulings and opinions available for evaluating her positions. What is available paints an incomplete picture.

In a 2014 case, for example, Barrett ruled against a local elected sheriff who argued that as a public official, he was immune from being sued. A citizen had accused the sheriff of unlawful arrest and civil liberties violations. Barrett agreed that the sheriff had acted abhorrently and went so far as to say the sheriff’s own briefs responding to the lawsuit were “riddled with lies.”

She concluded in a 2018 case an anonymous tip wasn’t enough justification for police to pull over a vehicle. In a case the following year, she argued that federal drug enforcement agents had searched a suspect’s apartment illegally when the door was opened to them by a guest of the tenant.

Barrett has also argued for improved legal aid to prisoners and against excessive prison sentences and sentencing enhancements. In Kanter v. Barr, she said a past felony conviction should not automatically prohibit someone from legally obtaining a firearm. To Barrett, such a determination should hinge on whether an offender has a history of violence.

On the other hand, Barrett has raised eyebrows with rulings against the interests of prisoners and defendants.

In a 2019 case, she ruled against state prisoners alleging they were cruelly and maliciously fired upon by guards following an inmate dispute. In a second 2019 case, she acknowledged that prosecuting attorneys had wrongfully withheld evidence from the defense but said it shouldn’t lead to the case being overturned. Barrett also rejected a defendant’s claim in 2018 that his attorney being barred from a pre-trial hearing denied him effective assistance of counsel.

The Potential Impact

Decisions by the Supreme Court are some of the longest lasting and most impactful decisions made by our Government. Legal opinions by the Court can and frequently do stand for decades and even centuries. Many of the civil rights that we have today are not based on any law or specific provision of the Constitution, but rather the opinion of the Court. Barrett’s appointment signals an impending decades-long shift towards judicial conservatism. Consequently, future cases involving civil rights are much more likely to be construed narrowly. Only time will tell exactly what that will mean for Oklahoma and the rest of the Country.

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