Judge Barrett’s Addition to the Bench Could Help Depoliticize the Supreme Court: JCN President

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
October 2, 2020 Updated: October 3, 2020

Judge Amy Coney Barrett’s potential confirmation to the Supreme Court could play a positive role in attempts to depoliticize the nation’s top court, Judicial Crisis Network President Carrie Severino told The Epoch Times.

Barrett’s judicial philosophy is one of the important factors that influenced President Donald Trump’s decision to nominate her to replace late Associate Justice Ruth Bader Ginsburg. She is described as an originalist and textualist, a judge who promises to interpret the U.S. Constitution or statutes based on what the original authors intended at the time of ratification and puts weight on the actual text of the law.

This judicial approach, Severino says, is what could help diffuse the current political state at the Supreme Court as justices would be less likely to inject their policy preferences in decisions if they stick to the text of the law.

“From my perspective, that really bodes well for attempts to depoliticize the court, because what brings the politics into the system is having the court deciding issues itself that are supposed to be decided by the American people,” Severino said.

Judge Amy Coney Barrett
Judge Amy Coney Barrett speaks after being nominated to the U.S. Supreme Court by President Donald Trump in the Rose Garden of the White House in Washington, on Sept. 26, 2020. (Olivier Douliery/AFP via Getty Images)

The Judicial Crisis Network is a conservative organization that works to confirm judges that are dedicated to adhering to the Constitution and the rule of law. The group helped confirm both of Trump’s Supreme Court nominees such as Justice Brett Kavanaugh, and have launched several ad campaigns to assist with Barrett’s confirmation.

Judges would begin to act as legislators if they have in mind that they could update the law when interpreting the text, Severino said. This would lead to an examination of what direction the law should take, which in turn raises questions about whether a judge’s personal policy preference would play a part in that decision.

But if a judge considers himself or herself bound to the text of the law, then it is less likely that they would import their own ideas of what would be best in the law or how the law would work, she added.

“Because they’re going to be limiting themselves to the actual words that were written by our elected representative,” she said. “That better reflects what our actual constitutional system is supposed to be because it’s our elected representatives, not the judges—who are not even elected—the judges are simply reading the laws, the legislators are the ones who are supposed to be writing the laws.”

She argued that if there were nine originalists on the bench, the Supreme Court nomination process could be less political than what had transpired in recent years.

The Supreme Court nomination process “effectively becomes almost a proxy for legislative debates about policy issues. That’s not where that belongs at all. Those should be happening in the electoral process in our representative democratic system, rather than when we’re trying to choose judges whose role is supposed to be non-political,” she said.

Sen. Mike Lee (R-Utah) previously raised the issue with The Epoch Times during an interview on “American Thought Leaders.” He said judicial overreach, or judicial activism, currently observed in the judiciary is partly caused by Congress’ under reach or passivity to some issues.

He said that Congress has in many instances surrendered their legislating authority to the executive branch of government. This has led to the executive, the judiciary, and administrative agencies expanding their reach in order to fill the void left by lawmakers.

Epoch Times Photo
Sen. Mike Lee (R-Utah) at the CPAC convention in National Harbor, Md., on Feb. 28, 2019. (Charlotte Cuthbertson/The Epoch Times)

“I actually think we’re a significant part of the problem,” Lee said. “We’ve been under reaching. … For decades, we’ve been delegating out our power, we’ve been passive in response to executive and judicial overreach, but even worse, we’ve enabled, we facilitated, we’ve even created, in many instances, that judicial and executive overreach.”

The Utah senator said people have taken more interest in and have become more emotional about court decisions in recent decades because judges have taken a more prominent role in resolving certain social disputes, taking debatable matters beyond disputes, and tackling questions that are ordinarily left for the political branches of government. The federal government and states have also played a role by asking courts to resolve their political disputes.

This has ultimately resulted in a public perception that the courts are politicized.

“The judiciary is supposed to be the least dangerous branch because it looks in the rearview mirror,” Lee said. “It doesn’t look forward. In other words, it’s not there as a policymaking body. It’s not there to say this is how things should be and must be and we’ll be moving forward. It’s there to look in the rearview mirror in the sense of saying, as of the date in question, the law said X.”

He also expressed support of an originalist or textualist approach to judging, saying that this would make issues in dispute less controversial and less of an emotional exercise.

During her speech accepting the nomination, Barrett vowed to interpret the law as written.

“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate,” she said. “His judicial philosophy is mine too: a judge must apply the law as written. Judges are not policymakers and they must be resolute in setting aside any policy views they might hold.”

Barrett has been serving on the 7th Circuit Court and has been a favorite for many, especially among the conservatives, for her judicial philosophy.

Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.