Our desperate lack of civic literacy and understanding of the principles of our U.S. Constitution is never greater than when the Second Amendment is involved.
That brings us to the current U.S. Supreme Court confirmation hearing. Liberals, if taken at their word in desiring a more just and equitable body of law, should embrace Judge Amy Coney Barrett for what her decisionmaking framework might mean for their professed policy aims.
The judiciary, properly understood, is a deliberately antidemocratic coequal check on the executive and legislative branches. Certainly, there are democratic inputs: An elected president — with the consent of an elected Senate — populates the judiciary. However, the quintessential role of the judiciary is to keep the political democratic branches functioning within their constitutionally designated lane. And National Federation of Independent Business v. Sebelius notwithstanding, the judiciary must not yield to the other branches because they were “democratically elected.” That’s a vox populi fallacy.
Yet progressives speculate that Barrett, who currently sits on the United States Court of Appeals for the 7th Circuit, will defy “the will of the people” by ruling a certain way on cases with active judicial questions on whether one or both political branches exceeded their ambit, even if “popular” to do so. That simply is not how a constitutional republic operates.
Worse, it is intellectually reductive to assume just because a plurality of the red team or the blue team holds a particular policy preference that justices nominated by members of that team will hold them as well. If this were so, conservatives would like a word about Justices John Paul Stevens and Anthony Kennedy, to name but a few.
Take Barrett’s now-famous dissent in Kanter v. Barr. Rickey Kanter was found guilty of one count of felony mail fraud. Under federal and Wisconsin statute, felons are prohibited from possessing a firearm. Judges Joel Flaum and Kenneth Francis Ripple held that, yes, even those convicted of a nonviolent, unrelated felony could have their right to keep and bear arms suspended indefinitely. Barrett, however, illustrated how even though felon prohibition laws are constitutionally permissible when tailored, the Second Amendment protection represents a fundamental right not easily taken away.
Contrast this with progressive coverage of the case, such as “Amy Coney Barrett Wants Felons to Have Guns, but Not Votes” in The New Republic. Charitably read, the author laments that voting rights for felons might not have received the same heightened scrutiny as gun rights in a similar case. Barrett demurred on pulling law from the ether on a question not before the court, a practice Justice Ruth Bader Ginsburg engaged in.
Notably, Barrett has a body of scholarship and opinions that comports with several policy aims of liberals and progressives. Qualified immunity, the judicial doctrine that shields government actors from civil damages arising from constitutional violations, is one such issue. When Sen. Tim Scott’s (R-S.C.) policing reform bill omitted the doctrine, Senate Democrats refused to allow the bill to be taken up. Barrett, however, had recently denied qualified immunity to a detective accused of the malicious mishandling of evidence.
Barrett has also cast a scrutinous eye on government power under the restrictions imposed by the Fourth Amendment, both in terms of probable cause and the reasonableness of searches and seizures.
Ginsburg was a zealous advocate of progressive causes, earning her the respect of many. Countless colleagues, including a great many conservatives, have lauded her intellect, drive and compassion. These observations would be relevant reflections on a storied career as an elected official but are not for a neutral arbiter of the law. Ginsburg’s tragic failing was that her vessel of jurisprudence was rudderless, listing about in political winds.
Perhaps the progressives are right. There would be no greater repudiation of Ginsburg’s legacy as a jurist than to replace her with a judge.