The Democrats are furious — and terrified — that the confirmation of Judge Amy Coney Barrett would “move the high court in a far more aggressively conservative direction,” as NPR’s Nina Totenberg put it, but that characterization is neither correct nor entirely honest.
Barrett is not a conservative.
Judge Barrett is, like her mentor, the late Antonin Scalia, an adherent of what is sometimes known as “textualism,” the belief that judges are constrained by what the law actually says rather than empowered to read their own morality, political preferences or social sensibilities into the law. It is a testament to the unseriousness of the times in which we live that this belief — that, when it comes to the law, we put it in writing for a good reason — is some species of right-wing radicalism.
Textualism is a turn away from progressive activism, to be sure. But it is not a turn toward right-wing activism: It is a turn toward the rule of law.
The Supreme Court in the past 50 years has simply invented new “constitutional rights” that are nowhere to be found in the Constitution, accomplishing in the courtroom what progressive activists could not at the ballot box. Prominent among these manufactured mandates are the right to abortion and to homosexual marriage. A more mature view of constitutional governance would appreciate that those questions are questions for Congress and for the state legislatures, not questions for the Supreme Court. The Constitution does not contemplate those issues, and the landmark legal cases of Roe v. Wade and Obergefell v. Hodges were not judicial decisions at all, properly understood: They were abuses of power by progressive activists intent on substituting their own preferences for the law.
For much of the past century, most of the judicial activism coming out of the Supreme Court has been progressive activism, which has pleased progressives and irritated conservatives. But progressives have short memories, and history shows that a Supreme Court unmoored from the letter of the law can be put to atavistic ends as easily as to liberal ones: The infamous Dred Scott decision, in which the Supreme Court ruled that African Americans could not be citizens on any terms and denied them any access to the rights and privileges of citizenship, was exactly the kind of activist decision that textualists oppose and hold to be illegitimate. Oliver Wendell Holmes empowered the government to sterilize mentally disabled people in Buck v. Bell not because the Constitution permits it but because he believed, as he said, “Three generations of imbeciles are enough.”
Supreme Court justices are not philosopher-kings, and when they go rogue they often go wrong.
The career of Justice Scalia offers an illuminating counterexample. Scalia was deeply offended by flag-burning, an act he considered immoral and distasteful. When the case of a Texas man who had burned a flag at the Republican National Convention came before the Supreme Court, Scalia had no sympathy for him: “I would send that guy to jail so fast if I were king,” he later said. But — unlike the activists — he understood that he was not a king. The First Amendment explicitly protects political communication and political protest, and so he ruled in favor of the “bearded weirdo” — because that is what the law, as written, actually required, even if his own heart desired a different outcome.
Overturning Roe on textualist grounds would not mean an end to abortion rights in the United States. It would simply mean an end to the fiction that these rights are mandated by the Constitution, which they are not. The matter would then devolve to the state legislatures, and California will have abortion laws that are different from Oklahoma’s. More important, the people will get a say in those laws through their legitimate elected officials rather than having the matter decided by five out of nine robed mystics in Washington.
Kevin D. Williamson is the author of the upcoming “Big White Ghetto: Dead Broke, Stone-Cold Stupid, and High on Rage in the Dank Woolly Wilds of the “Real America” (Regnery).