Today, Explained - Amy Coney Barrett’s originalism

Episode Date: October 14, 2020

The judge isn’t saying much in her confirmation hearing, but Vox’s Ian Millhiser explains how her legal theory will guide her on the Supreme Court. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit megaphone.fm/adchoices Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. Ian Millhiser, you cover the Supreme Court for Vox. We are on day three of Judge Amy Coney Barrett's confirmation hearings. What have we learned? So the short answer is not much. Nominees in their Supreme Court hearings are often very evasive, but Barrett has been unusually evasive. She would not commit to saying that there has to be a peaceful transfer of power. At one point, I believe it was Senator Klobuchar read to her a statute saying it's illegal to intimidate voters, and she wouldn't say that it's illegal

to intimidate voters. Senator Klobuchar, I can't characterize the facts in a hypothetical situation, and I can't apply the law to a hypothetical set of facts. I can only decide cases. She's worked very hard not to answer questions. That being said, this is a nominee with a pretty clear record. She is a so-called originalist, which, at least in its

modern form, is a theory that is used to implement a very aggressive conservative jurisprudence. She is very outspoken in her opposition to Roe v. Wade. She's criticized both of the Supreme Court's past decisions, largely upholding the Affordable Care Act. So we know that this is a very conservative nominee, and we have a pretty good idea of what at least a few things are that she's likely to do right away. Well, I want to get to the originalism, but let's start with the evasive nature of these hearings. Is this really something exceptional that we haven't seen before with Kavanaugh or Gorsuch or Kagan or Sotomayor? So, I mean, I think that Barrett has been unusually evasive, but Supreme Court nomination hearings have been moving in this direction of sucking all the information out of the room for a very long time. It really goes back to the Robert Bork hearing in the 1980s.

Bork was a Reagan nominee to the Supreme Court. I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an associate justice of the Supreme Court. And to his credit, he was very honest about his belief. What I do, unfortunately, I suppose, is take Supreme Court opinions that seem to me unsatisfactory as matters of constitutional reasoning and criticize them. He was very open about the fact that he believed that it was wrong, not just for the Supreme Court to protect abortion, but to protect the right to contraception.

I think the law was an utterly silly law. You know, he was very honest about the fact that he wanted to sweep away a bunch of voting rights victories, including the one person, one vote doctrine, which says that you can't have one congressional district with five people and one with a million people. And he did not get confirmed after being so honest. And what I think every nominee since then has learned is that being honest is not a good way to get the job. Roll call number 348, the nomination of Robert H. Bork. The yeas are 42.

The nays are 58. The nomination is not confirmed. Right, but we do know a bit about her from her past as a judge. And the last time we spoke to you, we talked about abortion, the Affordable Care Act, and the election, which, as I understand, are still three issues that at least Democrats are trying to get some clarification from Amy Coney Barrett on. Has that worked at all thus far? So, I mean, there's a weird bit of kabuki theater to these nomination fights where, especially when there's a Republican nominee, the Democratic senators will try to trick the nominee into saying, I will overrule Roe v. Wade. And the nominee is never tricked

into saying that they will overrule Roe v. Wade. But like we know that she's going to overrule Roe v. Wade. She has signed a bunch of petitions and sign on letters where she pledged to oppose abortion. There was one where she referred to Roe v. Wade as an infamous decision. So there isn't a mystery here that needs to be solved. She just isn't saying it during her hearing. And what will that actually mean for people if Roe v. Wade is overturned? There's a question about how the Supreme Court will go after Roe. They may not actually write the words Roe v. Wade is overruled. The court may just allow laws that make it functionally impossible to get an abortion without ever saying that Roe is gone. There's also a question if Roe v. Wade is struck down, the next possible horizon for anti-abortion

advocates is something called fetal personhood. And fetal personhood would essentially be the opposite of Roe v. Wade. So Roe v. Wade says that the fetus to not be aborted. And so if this theory were to take hold, it would mean that abortion would become illegal throughout all 50 states. We should note that in a lot of states, it's already pretty darn hard to get an abortion, yeah? Yeah. I mean, the Supreme Court, while it hasn't had five votes until probably very recently to outright overrule Roe v. Wade, the court has been very aggressive in allowing laws that make it hard to get an abortion to stand. They can force abortion providers to read an anti-abortion script. They can put certain regulations on clinics. And we're likely to see much more of this. So like the last big fight over abortion rights was whether states can enact laws that make it so expensive to operate an abortion clinic that it's functionally impossible to do so. And so that's one way that

the Supreme Court could get rid of the abortion right without overruling Roe v. Wade. They could say Roe v. Wade is nominally in place, but if a state wants to pass a law saying that all abortion clinics have to be built out of solid gold, they can do that. Now, do you know how many Americans have obtained insurance through the Affordable Care Act? I do not. Let's talk about the Affordable Care Act for a second. I saw part of the hearing on Tuesday where Senator Leahy was cluing Amy Coney Barrett into how many people could stand to lose health care if the Affordable Care Act is struck down.

It's more than 20 million. And do you know how many children under the age of 26 are able to stay on their parents' insurance because of the Affordable Care Act? I do not. And Amy Coney Barrett seemed to not know how many people had their health care on the line. Did we learn anything about her feelings on the ACA? So Barrett hasn't been particularly forthcoming in this hearing about her views on Obamacare, but she wrote a book review in 2017 where she said that NFIB, the first decision that largely upheld the Affordable Care Act, and King v. Burwell, the second decision which

preserved the Affordable Care Act after a partisan attack, rested on a, you know, what she thought was a very stretched and like difficult to defend reading of the law. So she's been fairly clear that she thinks that the past court decisions allowing Obamacare to continue to thrive were wrongly decided. That said, there is a case in front of the Supreme Court right now, which rests on an unusually weak legal argument that seeks to strike down the Affordable Care Act. And in the short term, I don't know if Barrett or anyone else is going to sign on to the argument in this case because it is just so bad. But the fact that the court might not strike down Obamacare this time around doesn't mean that they can't take up another case and use that as a vehicle to strike the law down.

And the election? Yeah. Oh, man. So the one question that kept coming up about the election is, of course, Donald Trump hasn't committed to a peaceful transfer of power and so some senators asked do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power and she wouldn't say yes i mean she didn't say no but you know she wouldn't answer even that question well Senator that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office and so to the extent that this is a political controversy right now as a judge I want to stay out of it and I don't want to express a view. I think there's one plausible reason she's not answering it is that Donald Trump is vindictive and he, you know, he reacted in anger when Jeff Sessions, his previous attorney general,

recused from the Russia investigation. So he has a tendency to lash out at people. And so maybe Barrett didn't answer the question because she fears that if she commits to a peaceful transfer of power, Donald Trump will withdraw her nomination. I don't know why she wouldn't answer the question, but I mean, the most basic question you could possibly ask about voting rights, you know, if the voters elect Joe Biden president, can we have him become president without a civil war? She wouldn't even commit to that question. I saw a lot of people making a big deal of the fact

that she just has a notepad with zero notes on it in front of her. But I kind of wondered if that was a big deal, considering she isn't really saying much. Well, look, she's a really smart woman. She has thought a lot about the Constitution. She's thought a lot about her originalist philosophy. And if confirmed, is likely to use her originalist theories

to implement an extraordinarily conservative agenda. More with Amy and Ian in a minute. Support for Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained,

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If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Ian, you went to law school. For all the people who didn't, what is originalism?

So the definition of originalism is that you believe that the meaning of the Constitution's words is fixed and that judges are bound by those words. And if you just provide someone with the definition, it sounds obvious. I mean, of course, judges have to be bound by the words of the Constitution. The problem with originalism, there's several problems with originalism. One is that the Constitution is really vague. You know, it refers to the privileges or immunities of citizenship, doesn't tell us what they are. It says that there cannot be unreasonable searches and seizures. Do you know what it means to be unreasonable? Because it's not really clear in the document. You know, it uses the word liberty.

It doesn't define the word liberty. So, like, the Constitution uses words that not just constitutional scholars, but philosophers have been debating the meaning of for almost as long as those words have existed. And the idea that a judge could simply say, well, I'm only following the words of this very vague text is a bit of a dodge because ultimately there has to be a bit of personal judgment brought to the table if you are interpreting a word like liberty. I know a lot of people associate originalism with Justice Antonin Scalia, but is he the OG originalist? How did this thing come about? How does it,

how's it sort of developed as a legal theory? Originalism is a theory that I think tends to arise in reaction to legal developments that someone disagrees with. So in the last century, there have been what I would describe as three great waves of originalism. The first was actually a liberal wave. It was spearheaded by a man named Hugo Black, who was a Roosevelt appointee in the Supreme Court. Obscenity is wholly ambiguous. It means one thing to you and another thing to you and another thing to these, another thing to me. I've always detested it, but that's no reason, I think, that it's not speech on an important

subject. Liberals can be originalists too. Yes. I mean, again, originalism generally manifests not as a way of implementing conservative policies, but of a way of wiping out past decisions that an originalist doesn't like. Black objected to some early 20th century decisions that made it very, very difficult for the government to regulate the economy in the workplace. And he couldn't just because judges aren't allowed to say, well, I disagree with that past precedent, so I'm going to get rid of it. He had to come up with the reason

to get rid of it. And originalism allows a judge to wrap themselves in the legitimacy that comes from the Constitution's text and the framers and say, look, you know, James Madison beats your prior precedent. And so Black joined the court after a 40-year period where conservatives were just running buck wild. You know, conservatives on the Supreme Court were striking down child labor laws. They were striking down minimum wage laws. They were striking down the right to unionize. And Black wanted to get rid of all of that. He had to come up with a good reason to get rid of these precedents.

And so what he could do is he could wrap himself in the legitimacy that comes from the framers and from the Constitution's text and say, my original history beats your bad precedents. So what's wave two? What's the second wave? So the second wave was led by men like Scalia. I, Antonin Scalia, do solemnly swear. That I will support and defend the Constitution of the United States. That I will support and defend the Constitution of the United States. And this was a reaction to the liberal Warren court.

So just as Justice Black disagreed with conservatives running buck wild in the early 20th century, Justice Scalia disagreed with liberal decisions that were handed down in the 50s and the 60s and to a lesser extent, the 70s, right after Chief Justice Warren stepped down. And that I will well and faithfully discharge the duties of the office. The duties of the office. Scalia wanted to get rid of decisions like Roe v. Wade. My view is, regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. But the kinds of arguments that he used were very similar to the arguments that Black was using.

He would wrap himself in the framers. He would wrap himself in the Constitution's text and original history and say, this history, like my obedience to the text, trumps these past precedents that I disagree with. Huh. And the third wave is the third wave, everything that Scalia influenced. The third wave likes to cite Scalia as an inspiration. But I think the third wave is something much more frightening than what's come before it. So conservatives have controlled the Supreme Court for a very long time. And one thing that happens when you control the judiciary for a really long time is you become really comfortable with judicial power. While Scalia

articulated a theory of judicial restraint to get courts to do less, the preeminent originalist right now is Justice Clarence Thomas. Justice Clarence Thomas, he has asked a question during oral arguments in a case that doesn't sound funny. The man has has asked a question during oral arguments in a case. It doesn't sound funny. The man has not asked a question in 10 years. Justice Marshall rarely asks questions. Justice Powell rarely asks questions. That's a personal preference. I certainly wouldn't do it to provide histrionics for the media gallery or for other people or for critics. Critics will always be critics. Justice Clarence Thomas would bring back the doctrines that were used to strike down

child labor. It's not entirely clear that the ban on whites only lunch counters is constitutional under Justice Thomas's theory of the Constitution. So the third wave of originalism, what a lot of scholars refer to the new originalism, is about wiping away much of the 20th century. Another prominent member of the third wave of originalism is Justice Neil Gorsuch. The first time the Supreme Court of the United States really departed from the original meaning of the Constitution was perhaps in Dred Scott, when the court found a right for white persons to own black persons as slaves in the territories of the United States. Scour the document as long as you want. You will not find that right there.

They made it up. Or take the Sixth Amendment, which guarantees you a right to confront your accusers in any case against you. For years, the Supreme Court of the United States said, no, we're not going to enforce that right, except for when we think it's really important. Originalism says no to both of those things. Gorsuch's big project is he wants to eliminate much of the administrative state. So the EPA has a great deal of power to make sure that we have clean air and clean water. The Labor Department has a lot of power to make sure that people are paid fair wages. The Department of Health and Human Services has a lot of power to make sure that insurance companies are providing us with a certain baseline of coverage. And Gorsuch wants to strip away a lot of that power. So again, Thomas and Gorsuch aren't operating under a theory of judicial restraint.

They're operating under a theory of wanting the court to do more and more and more to implement a conservative agenda and to strip the federal government of much of its power to operate. I've heard Gorsuch referred to as a textualist, maybe even by you on this show. How does originalism gel with textualism? And is that an important difference? If anything, I would say that originalism is a flavor of textualism. So textualism is the idea that when you're dealing with a legal text, the text of the constitution or the text of the document controls. And again, that's one of those theories that like sounds deceptively simple, but in practices can be very difficult to implement. Originalism, again, is the idea that when you're interpreting the Constitution, the Constitution has a fixed meaning and judges are bound by it. So originalism and textualism are at the very least close cousins. And where does Amy Coney Barrett fall in to these three waves of originalism?

I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time, and it's not up to me to update it or infuse my own policy views into it. Barrett has written about originalism at a very high level of generality. One thing that I find very frustrating about her scholarship is with a few exceptions. I mean, again, she's been very clear that she opposes abortion. She's been very clear that she thinks that the Obamacare cases were wrongly decided. But she doesn't really get into the weeds about what sort of changes she would make under her originalist philosophy. You know, we don't know if she agrees with Justice Thomas that federal child labor laws should be struck down, for example. But, you know, she grew up in the era where third wave originalism was ascendant amongst conservatives she uses very similar rhetoric to what i hear from other third wave originalists

and so i think it's a safe bet that if she joins the supreme court you know there might be some nuances um just as justice thomas and justice gorsuch don't agree on everything it's likely that barrett won't agree with those two men on everything as well. But I think that she's going to take a very similar approach, and we're going to see her, like Thomas and Gorsuch, trying to sweep away much of the government's ability to function. And her confirmation to that Supreme Court is all but sure. Do we know when it's going to happen? Yeah, I mean, barring a miracle or like, you know, maybe six Republican senators will be lost at sea. She's getting confirmed.

This is probably not about persuading each other unless something really dramatic happens. All Republicans will vote yes and all Democrats will vote no. And that will be the way the breakout of the vote. The Senate is operating under a very rushed schedule to get her confirmed. I mean, I think Lindsey Graham has announced the first markup on the Barrett confirmation in the committee will take place on Thursday. I think she's likely to be confirmed by the end of this month. Just in time to weigh in on an election of which she won't commit to a peaceful transfer of power. Yeah, that's a team Everything is awesome

Ian Millhiser, he writes about the Supreme Court at Vox.com where you can find our latest coverage of Judge Amy Coney Barrett's confirmation hearings. Ian also just wrapped up hosting a mini-series on voting rights for the Weeds podcast. It's called By the People. Each episode looks at a different obstacle facing voters in the coming election from voter suppression to the Constitution to the Supreme Court itself. And while we're on the Supreme Court, on Tuesday, in a seven to one decision, Justice Sotomayor dissented. The court approved of the Trump administration's effort to end the national headcount early. That means, at least for now, this thing ends October 15th

at 11.59pm Hawaii time. So if you're like a last minute person, that last minute is soon approaching. I'm Sean Ramos for him. It's Today Explained. playing.