In a sharply worded response in National Review to my Commonweal article on Amy Coney Barrett’s Supreme Court nomination, Ed Whelan has challenged my claim that there are significant differences between the judicial philosophies of Judge Barrett and Justice Antonin Scalia. I’d like to reply.
My central claim was this: though Barrett and Scalia are both originalists and agree on many matters, they differ on the key issues of judicial restraint and respect for precedent (stare decisis). Specifically, Barrett attaches less importance to judicial restraint and stare decisis than Scalia does.
With respect to judicial restraint, I pointed out that Barrett argues it was a mistake for “early originalists” (Barrett and Nagle 2016, 3) such as Scalia to support originalism by invoking the value of judicial restraint. As Barrett sees it, originalism is not a theory of judging but a theory of law. According to “modern originalists” (Barrett and Nagle 2016, 3) like herself, originalism claims that original meaning is the law, and thus binding on judges (and all other public officials) whether that serves to restrain judges or not.
Whelan counters that this creates a false contrast between Scalia’s views and Barrett’s. He writes:
One of Scalia’s frequent criticisms of “living constitutionalism” and other alternatives to originalism is that they “can take away old rights as well as create new ones.” (The Essential Scalia, p. 16.) Insofar as Bassham is presenting Scalia as, above all, an apostle of judicial restraint, he is missing that Scalia was as adamant about enforcing the rights that are in the Constitution as he was about not inventing rights that aren’t in it.
I am well aware of Scalia’s concerns about the court taking away old rights, but fail to see how that has much bearing on my argument. Scalia argued repeatedly that one of the major attractions of originalism is that it curbs judicial willfulness, discretion, and policymaking. Barrett argues that judicial restraint isn’t a reason for embracing originalism at all. Modern originalists of her stripe “have abandoned the claim that one should be an originalist because originalism produces more restrained judges. Originalism has shifted from being a theory about how judges should decide cases to a theory about what counts as valid, enforceable law. The Constitution’s original public meaning is important not because adhering to it limits judicial discretion, but because it is the law” (Barrett 2017a, 81). To Barrett, whether a court should be activist or restrained is “purely contingent” on whether a challenged law or policy squares with original meaning (Barrett 2017a, 82n60, quoting Keith Whittington). For Scalia, judicial restraint is a critical support for originalism, and thus a check on destabilizing judicial rulings; with Barrett, this built-in check disappears.