In our Constitutional scheme it is fundamentally not the role of unelected, life-tenured federal judges to legislate from the bench. Rather, it is the role of the judge to precisely interpret and enforce the law as it is written. To do anything else is an illegitimate exercise of the judicial power.
Making policy as a “Super Legislature” is a perversion of a judge’s duty to be an unbiased arbiter of the law and it violates our constitutional system of checks and balances and the critically important Separation of Powers. Policymaking and lawmaking are exclusively the province of the elected branches. The Legislative Branch is specifically charged with making law. That’s its purpose in our constitutional scheme and our democratic process requires that any change to our law come from either an amendment to the Constitution or a revision of a statute, but not from the whim of a court.
Judge Amy Coney Barret’s judicial philosophy and methodology of judging stem directly from the school of legal analysis advanced by the late Justice Antonin Scalia. Like Justice Scalia, Judge Barrett is a strict constructionist, a textualist, and an originalist. Together, these terms mean that she will interpret the law in the strictest, most straightforward manner possible based upon the text itself—the plain, precise, literal meaning of the words (textualism), and the original meaning of the words (originalism) at the time the Framers drafted the document. Textualism is most often applied to the interpretation of statutes and Originalism is most often applied to interpretation of the Constitution.
From a standpoint of constitutional interpretation, this view of judging is grounded in the belief that the plain meaning of the words in our Constitution represent timeless principles and transcend every generation. What Judge Barrett firmly rejects is the view that the Constitution is a “living organism” that is “dynamic,” evolving, adapting and subject to change without being formally amended. That’s the very definition of “judicial activism” and it poses a danger to our form of government.
(Judicial activism is the reason for the 1973 Roe v. Wade abortion decision, which has no constitutional foundation in the 14th Amendment or anywhere else and amounts to one of the most egregious examples of judicial activism and judicial policymaking in American history).
There is no question that competent judging requires a sharp legal mind. However, I think it also requires something equally crucial, and rare: genuine humility. The judge must never lose sight of the fact that he or she occupies the role of an umpire or referee and only serves a legitimate judicial function by striving to accurately interpret the law as it is written, never conjuring it up or concocting it; never substituting the judge’s personal experiences, policy preferences or cultural inclinations for those of elected lawmakers. This intellectual discipline is grounded in humility.
I sense that humility in Judge Barrett. Everything I have read, summaries of her past judicial opinions, including her dissents, as well as speeches she has made, all lead me to conclude that she not only possesses the correct judicial temperament, and a keen understanding of the proper judicial function, but, more importantly, a sincere humility in her role as a judge.
When our branches of government are not required to remain in their respective constitutional orbits, our form of government cannot work. This need for restraint certainly includes the judicial branch and the federal courts. Judge Barrett is sensitive to the need for, and reflective of, a modest, humble role for judges and the need for judicial restraint.
Closely adhering to the dictates of our Constitution and the Separation of Powers is the only way “we the people” will remain in control of our government and the laws we live under, so that our government can truly be said to derive its “just powers” from the “consent of the governed.”
Royal Alexander is a Shreveport attorney.