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Amy Coney Barrett's partisan nomination subverts the very intent of the Supreme Court

Anyone thoroughly steeped in true originalism or textualism would understand the Founders didn't want the judiciary to be this political.
Image: Amy Coney Barrett
Amy Coney Barrett meets with Sen. Lindsey Graham, R-S.C., on Capitol Hill on Sept. 29.Chip Somodevilla / Pool via AP file

Alexander Hamilton argued in The Federalist Papers that, of the three branches of the government the founders were designing, the judiciary "will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." In other words, Hamilton — though he did believe that the Supreme Court should be able to rule on the constitutionality of federal law — thought the court would be the least powerful branch of government because it could not disturb the established political rights of all Americans.

Given the powers it has accrued since Hamilton's day, no one could say this about a Supreme Court that has been stacked with political partisans. And, indeed, the main substantive arguments both for and against federal appeals Judge Amy Coney Barrett's confirmation focus on the extent to which her potential rulings would affect such "political rights" as Americans' access to the Affordable Care Act and the extent (or even existence) of their right to privacy.

The process by which the court accrued those powers it was not assigned, as well as the widespread acceptance of that process even by people like Barrett, who expresses her fidelity to originalism and textualism, is relevant both to the fight over Barrett's confirmation and to the future of the court — as well as a telling indication that originalism and textualism are in the eye of the beholder, rather than objective distinctions.

Take, for instance, the court's landmark ruling in Marbury v. Madison (which Barrett accepts as a "super-precedent" — another idea that has no certain foundation in the text of the Constitution or the original intent of the founders). Neither the text of the Constitution nor the debates over framing and ratifying the text clearly establish that the founders intended that an unelected branch of government should have the power to strike down laws passed by the elected representatives of the people.

The issue of whether the court should have what would be effective veto power over laws duly passed by the legislative and executive branches was, in fact, raised at the Constitutional Convention, but there was inadequate support to include such powers in the Constitution, though efforts to expressly exclude such powers also failed. The courts were given only the clear power to enforce and interpret federal law in the text of the Constitution. The state ratification debates were inconclusive about whether states believed that the Supreme Court ought to have the power to get rid of laws passed by the two other branches of government; some state supreme courts at the time had such power of review, while others did not.

Anti-federalists and Jeffersonians typically rejected the idea that an unelected court could strike down statutes — but until Jefferson was elected president and his party took over both chambers of Congress, federalists who did not controlled Congress and the administration and appointed like-minded justices to the Supreme Court.

Originalism and textualism are in the eye of the beholder, rather than objective distinctions.

Thus, in February 1803 — two years into Jefferson's term and just before his party was set to take supermajorities in both the House and the Senate — the court, then still dominated by federalists, ruled in Marbury v. Madison that it had the right to review the constitutionality of statutes and strike them down if it found them unconstitutional.

Arguably, Marbury was the first example of a non-originalist, non-textualist Supreme Court decision; Barrett has cited it as one of her seven super-precedents (to which in her confirmation hearing she added an eighth, Loving v. Virginia).

The whole process for confirming Barrett is yet another. The Constitution, of course, entrusted the power to confirm judges to the Senate — which the founders constructed as a body that would represent the states, rather than parties. Before ratification of the 17th Amendment in 1913, state legislatures (rather than voters) chose senators. Therefore, a party-based, electorally driven partisan process of confirming judges does not comport with an originalist interpretation of the Constitution, either.

President Donald Trump's reasoning for pushing through Barrett's confirmation so quickly is hardly in line with any reasoned constitutional scholar's thinking about the subject, either. During his town hall program last week on NBC News — and after agreeing that Obama nominee Merrick Garland, who was not even granted a committee hearing in the spring or summer of 2016, was qualified — Trump said he had opposed Garland's confirmation because it occurred in a presidential election year in which the sitting president's party did not control the Senate.

Trump's reasoning presumes that partisan politics inherently control the process of confirming lifetime appointments to the Supreme Court — which seems explicitly divorced from both the Constitution's text and the founders' intent.

This is an argument against the deep partisanship in the process of confirming justices to the Supreme Court.

So, in a sense, the case against confirming Barrett to the Supreme Court is not really a case against her as a justice. It is a case for reaffirming at least part of the originalist intent of the Supreme Court as an institution.

If the difference between confirming Barrett but not confirming Garland rests solely on partisan control of the Senate, then how can Americans not dismiss the Supreme Court as simply another partisan institution — which the Republicans will now control for a generation? And if that is the case, those Americans who believe in a politically divided government have a near-obligation to vote for Democrats to control both houses of Congress, simply to balance out an explicitly partisan court that has veto power over the legislative branch's constitutional lawmaking powers.

None of this is an argument against Barrett as a judge or a justice; it is an argument against the deep partisanship in the process of confirming justices to the Supreme Court — which is disregarding the intent of the authors of our Constitution and the founders of our nation. After what happened in 2016 — and will likely happen again quite soon — no American can be faulted for seeing the Supreme Court as an explicitly partisan body, incapable of calling the "balls and strikes" as "impartial umpires," as Chief Justice John Roberts articulated at his own confirmation hearings.

Roberts has long admired Alexander Hamilton. But the view (which he shares with Hamilton) of a nonpartisan Supreme Court, if not already dead, will suffer another body blow with Barrett's confirmation.