After Justice Ruth Bader Ginsburg died and President Trump quickly nominated Judge Amy Coney Barrett to fill her seat on the U.S. Supreme Court, some Democrats were hoping that Utah GOP Sen. Mitt Romney might oppose confirmation of a justice so close to an election. Romney dashed their hopes on September 22, however, when he released a statement saying he favored a vote to confirm her.
Speaking to reporters, Romney voiced support for justices who are “strict constructionists.” Romney further commented, with a smile. “I recognize that we may have a court which has more of a conservative bent than it’s had over the last few decades,” he said. “But my liberal friends have over many decades gotten very used to the idea of having a liberal court. And that’s not written in the stars.”
“What liberal court?” I almost yelled aloud when I read this.
The fact is, liberal Democrats haven’t been the predominant influence on the composition of the Supreme Court since World War II ended. The four Chief Justices appointed since President Franklin Roosevelt’s death were all selected by Republican presidents. Of the Supreme Court justices confirmed since 1945, 12 were appointed by Democratic presidents; 20 were appointed by Republican presidents.
As for strict construction, which Romney and many other Republicans support, it dates back to before the Civil War. This theory requires that those interpreting a law or the U.S. Constitution should strictly adhere to the text exactly as it was written.
Most conservatives today, however, use two different terms, “textualism” and “originalism.” During her confirmation hearing Judge Barrett was asked to define originalism. She said it means that the text of the Constitution should be considered as having the meaning that it had when it was ratified and that meaning doesn’t change over time. A bit later she defined textualism in a similar way, saying that a judge should consider the text as it was written, with the meaning it had at the time and shouldn’t infuse her own meaning into it.
Prominent conservative organizations like the Heritage Foundation and the Federalist Society promote jurists who are originalists. In fact, all six conservative Supreme Court justices are members of the Federalist Society and Trump mainly used recommendations from that organization to choose the 200+ judges he has appointed to the federal courts.
Consequently, I decided to do some research on federalism, the Federalist Society and the Heritage Foundation so I could better understand how decisions might be made by Trump appointed judges.
Federalism is a system of government in which powers are divided between two levels of government that have equal status, i.e., federal and state. Federalists, however, believe that states no longer have equal status and that many federal government powers should be delegated to the states, including those over education and welfare.
The Federalist Society is a group of conservatives and libertarians – federalists – dedicated to “reforming the current legal order,” which its members believe is dominated by liberal ideology. They advocate “reordering priorities within the legal system to place emphasis on individual liberty, traditional values, and the rule of law.” Two of the organization’s founding principles are that the state exists to preserve individual freedom and that the duty of the judiciary is to say what the law is, not what it should be.
The Federalist Society appears to be an educational organization because it doesn’t take positions on legal or policy issues or engage in other forms of political advocacy – or so they claim. Its membership of 60,000 lawyers, law students, scholars, and other individuals believe that individual citizens – not government – can make the best choices for themselves and society. No doubt, its members consider themselves to be originalists.
On the other hand, the Heritage Foundation takes strong positions on policy issues and engages in conservative political advocacy. It claims to have over 500,000 members who value free enterprise, limited government, individual freedom, traditional American values, and a strong national defense. I suspect that many members of the Federalist Society also belong to the Heritage Foundation and hold the same conservative beliefs.
The Heritage Foundation developed a 1,100-page policy manual entitled “Mandate for Leadership” in 1980, according to its website. At the time, this document was described by United Press International as, “a blueprint for grabbing the government by its frayed New Deal lapels and shaking out 48 years of liberal policy.” I believe this tells us what the Heritage Foundation’s objectives are – roll back President Roosevelt’s New Deal.
So, how will federalism and originalism affect the Supreme Court’s decision on the Affordable Care Act (Obamacare)? Will people with preexisting conditions and tens of millions of Americans lose their health insurance? Will the conservative majority’s beliefs cause them to overturn Roe v. Wade and end constitutional protections for abortions in the United States? Will they reverse the Court’s 2015 ruling that allowed same sex marriages?
Well, polls indicate that a majority of Americans favor Obamacare, constitutional protections for abortion, marriage equality and numerous other more liberal positions ingrained in American society. No doubt, conservative ideology and public opinion are headed for a showdown as the Supreme Court considers these and many other issues that Republicans want decided in their favor.
But here’s the thing. If the Supreme Court’s conservative majority rules against strong public opinion, it will be Republican politicians that pay the price in subsequent elections.