Amy Coney Barrett:
Supreme Court Associate Justice Confirmation Hearing October 12-15, 2020
C-SPAN.org → https://www.c-span.org/search/?sdate=10%2F12%2F2020&edate=10%2F16%2F2020&congressSelect=&yearSelect=&searchtype=Videos&sort=Most+Recent+Event&text=0&all%5B%5D=%2522confirmation%2Bhearing%2522&sponsorid%5B%5D=61188
See below:
My comment about “Obergefell” (Obergefell v. Hodges, June 26, 2015)…9
Start of Day 1 Part 1
Lindsey Graham – Judiciary Committee Chair 00:03:20
I will start off with an opening statement, and say why are we here? Number one, Justice Ruth Bader Ginsburg died on September the 18th. What can you say about Justice Ginsburg? She was confirmed 96 to 3. Now, those were days that have since passed. I regret that. 96 to 3. Now, this was a person who worked for the ACLU. Someone who was known in progressive circles as an icon. Apparently just about every republican voted for her. Her good friend on the court, Justice Scalia, I think got 97 votes. I don’t know what happened between then and now. I guess, we can all take some blame, but I just want to remind everybody, there was a time in this country when someone like Ruth Bader Ginsburg was seen by almost everybody as qualified for the position of being on the Supreme Court, understanding she would have a different philosophy than many of the republicans who voted for her. Twenty-seven years on the court. Before becoming a member of the court she was an active litigator pushing for more equal justice and better rights for women throughout the country. Her close friend, until his death, Justice Scalia, called her the leading and very successful litigator on behalf of women’s rights, the Thurgood Marshall of that cause. What high praise. I can’t say any more than that statement says.
In my view, the person appearing before this committee is in the category of excellence, something the country should be proud of, and she will have a chance to make her case to be a worthy successor and to become the ninth member of the Supreme Court of the United States. On September the 26th Judge Barrett was nominated by President Trump to the Supreme Court.
Who is she? She is a judge sitting on the seventh judicial circuit. She’s highly respected. She was a professor at Notre Dame. Three years during that tenure she was chosen by the students for being the best professor, which I am sure is no easy task at any college. She is widely admired for her integrity. She grew up in New Orleans, graduated from Rhodes College in Memphis, Tennessee in 1994, graduated summa cum laude and first in her class from Notre Dame Law School in 1997. So, academically, she’s very gifted. She clerked for Judge Lawrence Silverman on the U.S. Court of Appeals for the D.C. Circuit, and then for Justice Scalia on the Supreme Court. She practiced law in Washington, D.C., she joined the faculty of Notre Dame in 2002. She’s published numerous articles in prestigious journals, including the Columbia, University of Virginia, and Cornell Law Review. She’s been a circuit court judge at the Seventh Circuit since 2017. She was confirmed to that position with a bipartisan vote. She has heard hundreds of cases in that capacity. She said, I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine. 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.
She will give her statement, but I think that is a good summary of who she is. That’s who Amy Barrett is in terms of the law. In terms of Amy Barrett the individual, she and her husband have seven children, two adopted. So, nine seems to be a good number. [snip]
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Senator Ben Sasse 01:46:03
Thank you, Mr. Chairman. Judge Barrett, congratulations. I just want to say Senator Klobuchar said a number of things about covid that I agree with. She cited a number of really painful stories in Minnesota, and similar stories could be told from across the country. I even agree with parts of her criticism of the mismanagement of covid by Washington, D. C. I don’t know what any of that has to do with what we’re here to do today.
Huge parts of what we’re doing in this hearing would be really confusing to eighth-graders. If civic classes across the country tuned into this hearing and tried to figure out what we are here to do, and they heard as much about the 2009 finance committee debates about what should be in a health care reform package. I’m blessed to just to sit, not just on the judiciary committee, but also on the finance committee, and lots of the discussions we’ve had in here today fit better in a finance committee hearing than a judiciary committee hearing. And so, I think it would be very useful for us to pause and remind ourselves, and do some of our civic duty to eighth-graders, to help them realize what a president runs for, what a senator runs for, and, on the other hand, why Judge Barrett is sitting before us today, and what the job is that you’re being evaluated for. So, if we can back up and do a little bit of eighth-grade civics, I think it would benefit us and benefit the watching country, and especially watching eighth-grade civics classes.
So, I would like to distinguish first between civics and politics, because, there was a time, the chairman said at the beginning of this hearing, there was a time when people that would be as different as Ruth Bader Ginsburg – and she was a heroic woman – that’s absolutely true; and Antonin Scalia, another brilliant mind and your mentor, people by different could both go through the senate and get confirmation votes of 95 or 98 votes; and the chairman said at the beginning of the hearing he doesn’t know what happened between then and now, I think some of what happened between then and now is we decided to forget what civics are and allow politics to swallow everything. So if I can start, I would like to just remind us of the distinction between civics and politics.
Civics is the stuff we’re all supposed to agree on regardless of our policy views differences. Civics is another way we talk about the rules of the road. Civics 101 is the stuff like congress writes laws, the executive branch enforces laws, courts apply them. None of that stuff should be different if you are a Republican or Democrat or a Libertarian or a Green Party member. This is basic civics. Civics is the stuff that all Americans should agree on, like religious liberty is essential. People should be able to fire the folks who write the laws, and voters can’t fire the judges. Judges should be impartial. This is just civics 101. Politics is different. Politics is the stuff that happens underneath civics. Civics is the overarching stuff we as Americans agree and in common. Politics is the subordinate, less important stuff that we differ about. Politics is like, if I look at my friend Chris Coons, and I say “listen up, jack wagon, what you want to do on this particular finance committed bill is going to be way too expensive and might bankrupt our kids”. Or, if Chris looks back at me and says, “listen up, jack wagon, you are too much of a cheapskate, and you’re underinvesting in the next generation”. That’s a really important debate. That’s a political debate. That’s not civics. Civics is more important than that. Civics does not change every 18 to 24 months because the electoral winds change or because polling changes. I think it’s important that we help our kids understand that politics is the legitimate stuff we fight about, and civics is the places where we pull back and say, :wait a minute, we have things that are in common, and before we fight again about politics, let’s reaffirm some of our civics:.
So, I’d like to have just sort of a basic grammar of civics for five minutes. One thing that we should all agree on and two things that we should all disagree with; we should agree on it. But, one thing that we agree about and are in favor of and two things that we agree on that we should all reject. First, a positive, grand, unifying truth about America, and that is religious liberty. Religious liberty is the basic idea that how you worship is not of the government’s business. Government can wage wars, government can write parking tickets, but government cannot save souls. Government’s really important. War is important. Parking tickets are important, but your soul is something that the government can’t touch. So, whether you worship in a mosque or a synagogue or a church, your faith or your lack of faith is none of the government’s business. It’s your business, and your family’s and your neighbors and all sorts of places where people break bread together and argue. But it’s not about power, it’s not about force, it’s not about the government. This is the fundamental American belief.
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Religious liberty is one of those five great freedoms clustered in the First Amendment of religion, speech, press, assembly, and protest. These five freedoms that hang together. The basic pre-governmental rights are sort of civics 101 that we all agree on well before we ever get to any thing as relatively inconsequential as tax policy. So, civics should be the stuff we affirm together. and contrary to the beliefs of some activist, religious liberty is not an exception You don’t need the government’s permission to have religious liberty. Religious liberty is the default assumption of our entire system, and because religious liberty is the fundamental 101 rule in American life, we don’t have religious tests. This community isn’t in the business of deciding whether the dogma lives too loudly within someone. This committee isn’t in the business of deciding which religious beliefs are good and which religious beliefs are bad, and which religious beliefs are weird. And I just want to say as somebody who is self-consciously a Christian, we’ve got a whole bunch more of really weird beliefs. Forgiveness of sins, the virgin birth, resurrection from death, eternal life. There are a whole bunch of really, really crazy ideas that are a lot weirder than some Catholic moms giving each other advice about parenting. And yet there are places where this committee has acted like it’s the job of the committee to delve into people’s religious communities. That’s nuts. That’s a violation of our basic civics. That’s a violation of what all of us believe together. This is not a Republican idea, it is not a Democratic idea. It’s a Democrat idea and a Republican, but more fundamentally it’s an American idea. And the good news is, whether you think you’re religious beliefs might be judged wacky by somebody else, it’s none of the business of this committee to delve into any of that in this context, because in this committee and in this Congress, and in this constitutional structure, religious liberty is the basic truth, and whatever you or I or Judge Barrett believe about God isn’t any of the government’s business. We can all believe in that in common. We should all reaffirm that in common, and that should be on display over the course of the next four days in this committee.
Now, a couple of terms that all of our eighth graders should know as things we should reject in common. And again, shared rejection, not Republican versus Democrat or Democrat versus Republican, but a shared American rejection. And the first is this – judicial activism. Judicial activism is the idea that judges get to advocate for or advance policies even though they don’t have to stand for election before the voters and even though they have lifetime tenure. Judicial activism is a really bad idea that tries to convince the American people to view the judiciary as a block of progressive votes and conservative votes; Republican justices and Democratic justices. This is the confused idea that the Supreme Court is just another arena for politics. When politicians try to demand that judicial nominees, who are supposed to be fair and impartial, when politicians try to get judicial nominees to give their views on cases or to give their views on policies, to try to get them to pre-commit to certain outcomes in future cases, we are politicizing the courts, and that is wrong. That is a violation of our oath to the constitution. Likewise, when politicians refuse to get answers to the pretty basic question of whether or not they want to try to change the number of justices in the court – which is what court packing actually is – when they want to try to change the outcome of what courts do in the future by trying to change the size and competition – composition of the court, that is a bad idea that politicize the judiciary and reduces public trust. On the other hand, de-politicizing the court looks a lot like letting courts and judges do their jobs and that congress do our jobs. You don’t like the policies in America? Great. Elect different people in the House and in the Senate, then the presidency. Fire the politicians at the next election. But, voters do not have the freedom to fire the judges, therefore we should not view judges and we should not encourage judges or the public to view them as ultimately politicians who hide behind the robes.
The antidote to judicial activism is originalism. Originalism, also known as textualism, is basically the old idea from eighth grade civics that judges don’t get to make laws. Judges just apply them. An originalist comes to the court with a fundamental humility and modesty about what the job is that they’re there to do. An originalist doesn’t think of herself as a super legislator whose opinions will be read by angels from stone tablets in heaven. Judicial activism, on the other hand, is the bad idea that judges in black robes are just fakes, and truthfully they are wearing red or blue partisan jerseys under there. We should reject all such judges. And so, today, when we have a nominee before us, we should be asking her questions that are not about trying to predetermine how certain cases will be judged.
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As a final term we should be clear about that I mentioned earlier but I think it is worth underscoring, is we should underscore what is court packing. Court packing is the idea that we should blow up our shared civics. That we should end the deliberative structure of the Senate by making it just another majoritarian body for the purposes of packing the Supreme Court. Court packing would depend on the destruction of the full debate here in the Senate, and it is a partisan suicide bombing that what end the deliberative structure of the United States Senate and make this job less interesting for all 100 of us, not for 47 or 53, because it’s hard to get to a super majority that tries to protect the American people from 51-49, 49-51 swings all the time. What blowing up the filibuster would ultimately do is try to turn the Supreme Court into the ultimate super legislature. Court packing is not judicial reform, as some of you who wrote the memo over the weekend got a lot of media to bite on. Court packing is destroying the system we have now. It is not reforming the system we have now, and anybody who uses that language, the language that implies filling legitimate vacancies is actually just another form of court packing, that’s playing the American people for fools. And the American people actually want a Washington, D.C. that de-politicizes more decisions, not politicizes more decisions. So Judge, I’m glad that you’re before us. I’m looking for to hearing your opening statement later today, and I look forward to the questioning you have to endure over the next to or three days, even though you probably look forward to it a little bit less. Congratulations and welcome.
[End of Day 1 Part 1]
[Start of Day 2 Part 1]
Lindsey Graham, Committee Chairman 00:08:20
The bottom line here, Judge, you said yesterday something that struck me and I want the American people to understand what you meant. You said you’re an originalist. Is that true? What does that mean, in English? We all love Senator Lee, but in English.
Amy Coney Barrett
In English. Ok, so, in English that means I interpret the constitution as a law. That I interpret the text as text, and I understand it to have the meaning that it had at the time people ratified it. So, that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.
Lindsey Graham
So, in other words, you’re bound by the people who wrote it at the time they wrote it. That keeps you from substituting your judgment for theirs? Is that correct?
Amy Coney Barrett
Yeah.
Lindsey Graham
Justice Scalia is an originalist, right?
Amy Coney Barrett
Yes, he was.
Lindsey Graham
People say that you are a female Scalia. What would you say?
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Amy Coney Barrett
I would say that Justice Scalia was obviously a mentor, and as I said when I accepted the President’s nomination, that his philosophy is mine too. You know, he was a very eloquent defender of originalism, and that was also true of textualism, which is the way that I approach statutes and their interpretation. And, similarly, to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time, and doesn’t infuse her own meaning into it. But, I want to be careful to say, that, if I’m confirmed, you would not be getting Justice Scalia. you would be getting Justice Barrett. And that’s so because originalists don’t always agree, and neither do textualists. Justices Scalia and Thomas disagreed often enough that my friend [name not clear?] teaches a class called Scalia versus Thomas. You know, it’s not a mechanical exercise.
Lindsey Graham
To President Trump, I don’t know if you are listening or not, by picking Judge Barrett you have publicly said you find value in all of these characteristics. But, beyond anything else, you find Judge Barrett to be highly qualified. I would say you are one of the greatest picks President Trump could have made, and from the Conservative side of the aisle, you are one of the most qualified people of your generation.
Let’s talk about Brown v. Board of Education because I know Senator Blumenthal will [laughter] talk about that. You said in writings it was a super precedent. What did you mean?
Amy Coney Barrett
Well, in my writings, so, as a professor, I talked about the doctrine of stare decisis, and super precedent is not a doctrinal term that comes from the Supreme Court, and I think, maybe in political conversation or in newspapers people use it different ways, but in my writing I was using a framework that’s been articulated by other scholars, and in that context super precedent means precedent that is so well established that it would be unthinkable that it would ever be overruled. And there are about six cases on this list that other scholars have identified.
Lindsey Graham
Let us talk about Brown and talk abut why it would be unthinkable. First, let us talk about what’s the process that would lead to it being overruled? What would have to happen?
Amy Coney Barrett
For Brown to be overruled you would have to have Congress or some state or local government impose segregation again. Open segregation.
Lindsey Graham
Ok. Let us stop right there. If you want to make yourself famous by the end of the day, you can say we want to go back to segregation. I promise you, you’ll be on every cable TV channel in America. I doubt if you will go very far, but the point we’re trying to make here is the court just can’t wake up and say, let’s revisit brown. It has to be a case in controversy, is that right?
Amy Coney Barrett
Yes. that’s right.
Lindsey Graham
So, before a Brown decision, before you could review Brown, somebody out there would have to be dumb enough to pass a law saying, let’s go back to segregated schools. Is that fair to say?
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Amy Coney Barrett
That is fair to say.
Lindsey Graham
Do you see that happening anytime soon?
Amy Coney Barrett
I do not see that happening anytime soon.
Lindsey Graham
Yeah. I don’t either. So, let us talk about the process in general. There’s the Heller case. What’s that about?
Amy Coney Barrett
The Heller case is a case decided by the Supreme Court which held that the Second Amendment protects an individual right to bear arms.
Lindsey Graham
Ok. Now, my friends on the left, some of them have a problem with Heller. They may try to challenge the construct of Heller. If a state or local government passed a law in defiance of Heller, what would happen?
Amy Coney Barrett
In defiance of Heller or...?
Lindsey Graham
Or that was challenging the construct of Heller.
Amy Coney Barrett
That challenged the construct of Heller. If it was brought in a lower court, Heller binds. Lower courts always have to follow Supreme Court precedent.
Lindsey Graham
If the Supreme Court wanted to revisit Heller, what would they do?
Amy Coney Barrett
If someone challenged Heller below, because a state or local government passed a law contradicting Heller, the Supreme Court would have to take that case once it was appealed all the way up. So the court would have to decide, yes, we want to overrule Heller and we have enough votes to grant cert, and then do so.
Lindsey Graham
So that’s the way the process works.
Amy Coney Barrett
Yes. It would start because there was a law, then there was a lawsuit, then there was an appeal, then the court granted cert, and then the court decided the case.
Lindsey Graham
Is that true no matter what the issue is? Whether it is gun, abortion, health care, campaign finance? Does that process hold true for everything?
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Amy Coney Barrett
Yes, you always. Judges cannot just wake up one day and say, I have an agenda, I like guns, I hate guns, I hate abortion, I hate abortion, and walk in like a royal queen and impose, you know, their will on the world. You have to wait for cases and controversies, which is the language of the constitution, to wind their way through the process.
Lindsey Graham
All right. Well, Senator Sasse gave us a good civics lesson, and I hope that’s the basic lesson in the law here. So, if the state said, you know, I don’t think you should have over six bullets, and somebody believed that violated the Second Amendment, there would be a lawsuit in the same process would work, right?
Amy Coney Barrett
The same process would work. In that case there would be, parties would have to sue the state arguing that that law was unconstitutional. It would wind its way up and if it got to the Supreme Court, and if the Supreme Court decided to take it, a whole decision making process begins. You hear arguments from litigants on both sides, they write briefs, you talk to clerks as a judge, you talk to your colleagues, and you write an opinion. Opinions circulate and you get feedback from your colleagues. So, it’s an entire process. It’s not something that a judge or justice would wake up and say, ah, we’re hearing this case, I know what my vote’s going to be.
Lindsey Graham
Let us talk about the two Supreme Court cases regarding abortion. What are the two leading cases in America regarding abortion?
Amy Coney Barrett
Well, I think most people think of Roe versus Wade, and Casey is the case after Roe that preserved Roe’s central holding, but grounded it in a slightly different rationale.
Lindsey Graham
So, what is that rationale?
Amy Coney Barrett
The rationale that the state cannot impose an undue burden on a woman’s right to terminate a pregnancy.
Lindsey Graham
OK. Unlike Brown, there are states challenging, on the abortion front, there are states going with the fetal heartbeat bill. I have a bill, judge, that would disallow abortion on demand after 20 weeks, the fifth month of the pregnancy. We’re one of seven nations in the entire world that allow abortion on demand in the fifth month. The construct of my bill is because the child is capable of feeling pain in the fifth month, doctors tell us to save the child’s life you have to provide anesthesia if you operate ‘cause they can feel pain. The argument I’m making is if you have to provide anesthesia to save the life ‘cause they can feel pain, it must be a terrible death to be dismembered by abortion. That’s a theory to protect the unborn at the fifth month. If that litigation comes before you, will you listen to both sides?
Amy Coney Barrett
Of course. I will do that in every case.
Lindsey Graham
So, I think fourteen states have already passed a version of what I’ve just described. So, there really is a debate in America still, unlike Brown versus Board of Education, about the rights of the unborn. That’s just one example. So, if there is a challenge coming from a state, the state passes a law and it goes into court where people say this violates Casey. how do you decide this?
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Amy Coney Barrett
Well, it would begin in a district court, in a trial court. The trial court would make a record. You know, the parties would litigate and fully develop that record in a trial court. Then it would go up to a court of appeals that would review that record looking for error. And then, again, it would be the same process. Someone would have to seek certiorari at the Supreme Court. The Supreme Court would have to grant it and then at that point it would be the full judicial process. It would be briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion, really digging down into it. It’s not just a vote. You all do that. You all have a policy and you cast a vote. The judicial process is different.
Lindsey Graham
OK. So, when it comes to your personal views about this topic, do you own a gun?
Amy Coney Barrett
We do own a gun.
Lindsey Graham
OK. Alright. Do you think you could fairly decide a case even though you own a gun?
Amy Coney Barrett
Yes.
Lindsey Graham
Alright. You’re Catholic.
Amy Coney Barrett
I am.
Lindsey Graham
We’ve established that. the tenets of your faith mean a lot to you personally. Is that correct?
Amy Coney Barrett
That is true.
Lindsey Graham
You have chosen to raise your family in the Catholic faith? Is that correct?
Amy Coney Barrett
That is true.
Lindsey Graham
Can you set aside whatever Catholic beliefs you have regarding any issue before you?
Amy Coney Barrett
I can. I have done that in my time on the seventh circuit. If I stay on the seventh circuit, I’ll continue to do that. If I’m confirmed to the Supreme Court I will do that still.
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Lindsey Graham
… Citizens United says what?
Amy Coney Barrett
Citizens United extends the protection of the First Amendment to corporations who are engaged in political speech.
Lindsey Graham
If Congress wanted to revisit that and somebody challenged it under Citizens United that Congress went too far, what would you do? How would the process work?
Amy Coney Barrett
Well, it would be the same process that I have been describing. First, somebody would have to challenge that law in a case. Somebody presumeably who wanted to spend the money in a political campaign. It would wind its way up and, you know, judges would decide it after briefs and oral argument in consultation with colleagues and the process of opinion writing.
Lindsey Graham
OK. Same-sex marriage. What’s the case that established same-sex marriage as the law of the land?
Amy Coney Barrett
Obergefell.
[My comment about “Obergefell” (Obergefell v. Hodges, June 26, 2015)]
The 2015 Supreme Court in a fiat (‘because we said so’) ‘opinion’ out of thin air that the right to marry is guaranteed to same sex couples by both the Fifth Amendment due process clause and the equal protection clause of the 1868 Fourteenth Amendment when homosexualism was not recognized in the common law of the 1700 to 2000s era. Only heterosexualism was recognized in the common law of 1787 when the U. S. Constitution was written.
Heterosexualism was and still is today the only way to ‘create’ “our Posterity” and so to produce with singular citizenship continuity a “natural born Citizen” by birth alone who is eligible to be president.
Homosexualism was known in 1700s America, but it definitely was not implied in the common law which influenced the text of the constitution in 1787 (Article II), or in 1868 (Fourteenth Amendment), or in 1898 (Supreme Court and Wong Kim Ark), or today in the 2000s.
To include homosexualism in the constitution written in 1787 requires an amendment with explicit words, not words which imply that homosexualism was implicitly included in the new constitution.
Also, the U. S. Congress cannot simply pass a law saying that homosexualism was implied in the text in 1787, and, as Prof. Akhil Reed Amar would probably say, in the “unwritten constitution” and can be found “... between the lines …” by the Supreme Court in “... America’s implicit constitution nestled behind the explicit clauses …”.
America’s Unwritten Constitution, Chapter 1, page 5
“For starters, we must learn to read between the lines — to discern America’s implicit constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution literally and reading the document faithfully”. [End of comment]
Lindsey Graham
OK. If there was a state who tried to outlaw same-sex marriage, there’s litigation, would it follow the same process?
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Amy Coney Barrett
Well, it would, and one thing I neglected to say before that’s occurring to me now is, not only would someone have to challenge that statute, and if somebody, if they outlawed same sex marriage, there would have to be a case challenging it. And for the Supreme Court to take it up, you have to have lower courts going along saying we are going to flout Obergefell. And the most likely result would be that lower courts, who are bound by Obergefell, would shut such a lawsuit down and it wouldn’t make its way up to the Supreme Court. But, if it did, it would be the same process as described.
Lindsey Graham
Well, let’s turn to Senator Hawley’s favorite topic, substantive due process as a legal theory. What am I talking about? Can you explain it to the country because if you cannot we’re in trouble. I think I’ll have a hard time doing it.
Amy Coney Barrett
So, both the 14th and 5th Amendments provide that the state cannot take life, liberty or property without due process of law. And, that sounds like a procedural guarantee, but in Supreme Court precedent it has a substantive component. And so, the substantive due process clause says that there are some liberties, some rights that people possess that the state can’t take away or can’t take away without a really good reason. So, the right to use birth control, the right to an abortion are examples of rights protected by substantive due process.
Lindsey Graham
These are judicially created rights not found in the document called the Constitution, is that correct?
Amy Coney Barrett
Well, the Supreme Court has grounded them in the Constitution.
Lindsey Graham
But they are not written.
Amy Coney Barrett
They’re not expressed.
Lindsey Graham
OK. So, is it fair to say there is a great debate in the law about how far this should go and what limits should apply, if any?
Amy Coney Barrett
That’s fair to say. There’s also a lot of debate in Supreme Court opinions. I’m not aware of anybody proposing to throw it over entirely, but there’s certainly a debate about how to define these rights and how far it should go.
Lindsey Graham
Well, let’s just say you’re in the camp, or, anybody’s in the camp, that substantive due process as a legal concept is unbounded. It basically makes the Constitution no more certain than the five people interpreting it at any given time in the country. Whatever rights they think you have, you get, whatever rights they want to take away from you, they can, is a pretty nebulous legal concept. That’s sort of my view of it. I’m not imposing my views on yours. But then there’s a thing called precedent. Let’s say you didn’t like a case decided under substantive due process. You thought the concept was constitutionally in error. How does precedent play?
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Amy Coney Barrett
So, precedent is the principle that cases that have been decided by the Court before this one lands on the docket are presumptively controlling. And so, you know, precedent comes from a concept of stare decisis which is shorthand for a longer Latin phrase that means :stand by the thing decided, and do not disturb the calm:. So, precedent is a principle that you’re not going to overrule something without good reason, or roil up the law without justification for doing so.
Lindsey Graham
So you could say the underlying analysis that led any case, just, case x, I reject that analysis but I will now apply precedent to whether or not it should be reversed. Is that what you’re telling us?
Amy Coney Barrett
That is.
Lindsey Graham
What other factors would a judge look at in terms of overruling a precedent?
Amy Coney Barrett
Well, of course, the inquiry begins because there’s been some argument the precedent was wrong. But that’s not enough to justify an overruling.
Lindsey Graham
You could say, structurally, this case constitutionally was wrongly decided, but that doesn’t end the debate. Is that correct?
Amy Coney Barrett
No. That’s right. You have to look at reliance interest. You have to look whether the law or the facts --
Lindsey Graham
Let us stop, real quick. Reliance interest by who?
Amy Coney Barrett
Reliance interest by those who have relied on the precedent.
Lindsey Graham
The people of United States.
Amy Coney Barrett
The people of the United States who’ve ordered affairs around it.
Lindsey Graham
So, the Heller case, people have relied upon the Second Amendment being an individual right. Is that correct?
Amy Coney Barrett
Um, precedent, yeah, presumably so.
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Lindsey Graham
Well, an abortion, the right to have an abortion, that would be a reliance factor. Right?
Amy Coney Barrett
The Court in Casey spent a lot describing the reliance of people on the right to an abortion.
Lindsey Graham
So, what I want the public to know is that if you overrule a precedent of the Court, even if you think it is wrongly decided, there is a list of things you have to look at before you actually overrule the case. Is that a fair way of saying it?
Amy Coney Barrett
That is a fair way of saying it.
Lindsey Graham
Would you apply those factors if you ever found yourself in a position where you wanted to consider overruling a precedent?
Amy Coney Barrett
Absolutely.
Lindsey Graham
OK. Have precedents of the Court been overruled before?
Amy Coney Barrett
Yes.
Lindsey Graham
Can you give me an example?
Amy Coney Barrett
Brown versus the Board of Education overruled Plessy versus Ferguson to get rid of the separate but equal doctrine.
[End of Day 2 Part 1]
[Start of Day 2 Part 2]
Ben Sasse 01:34:54
Judge, you have said that the meaning of law doesn’t change with time, and you said that’s important. Can you and unpack for us why it’s so important that the meaning of the law doesn’t change with time?
Amy Coney Barrett
Sure. Because the law stays the same until it is lawfully changed. And if we are talking about a law that has been enacted by the people’s representatives, or gone through the process of constitutional amendment, constitutional ratification, it must go through the lawfully prescribed process before it’s changed. So, Article Five in the context of the constitution, or bicameralism and presentment in the context of statutes, and it’s not up to judges to short circuit that process by updating the law. That’s your job.
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Ben Sasse
But laws clearly are written in the context and then the circumstances to which those laws have applied would change. Does the Fourth Amendment have nothing to say about cell phones? Unreasonable search and seizure was obviously not written at a time where they imagined mobile technological devices that addicted our kids. Does the Fourth Amendment have nothing to say about cell phones?
Amy Coney Barrett
No. The fourth amendment – so, the constitution, one reason why it’s the longest lasting written constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights but general enough to be lasting, so that, you know, when you’re talking about the constable banging at your door in, you know, 1791 as a search or seizure, now we can apply it as the Court did in Carpenter versus the United States to cell phones. So the Fourth Amendment is a principal. You know, it protects against unreasonable searches and seizure, but it does not catalog the instances in which an unreasonable search or seizure could take place. So you take that principle and then you apply it to modern technology like cell phones. Or, you know, like, what if technological advances enable someone with Superman x-ray vision to see in your house? So, there is no need to knock on the door and go in. So I think that could still be analyzed under the Fourth Amendment.
Ben Sasse
I think this is a useful place to explain to the American people again what originalism is and why it’s a mistake to view it as a Republican position. I think that originalism is a part of a jurisprudential debate. It’s not a part of a policy continuum between Republicans and Democrats. I think that it’s something that is useful for everybody who believes that three branches of government have two that our political and one that is not. So, maybe it’s useful to just kind of back up and say, when you define yourself as an originalist, what does that mean? And then how is that going to relate to that distinction between the principles that are timeless but the applications that are clearly gonna change by circumstance?
Amy Coney Barrett
Right. So, originalism means that you treat the constitution as law because it commits these texts to writing, and in interpreting the law, you interpret it in accord with the meaning that people would have understood it to have at the time that it was ratified. And the reason that you do that is because otherwise – well, as I said, the law stays the same until it’s lawfully changed – otherwise, judges would be in the constitutional convention business of updating the law rather than allowing the people to take control of that. Now, in the case of the Constitution, as I said with the Fourth Amendment, many of its principles are more general. Unreasonable searches and seizures, you know, free speech. Those are things that have to be identified or fleshed out or applied over time. So the fact that there wasn’t, you know, the internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s free speech clause couldn’t apply to those things now. It enshrines a principal, and we understand the principle as it was at the time, but then it’s capable of being applied to new circumstances.
Ben Sasse
So, when you define yourself as an originalist, what are the other schools of thought that are adjacent to it, and how do you think about the debates among those, with other people that are now with you on the Seventh Circuit, for instance?
Amy Coney Barrett
Sure. Well, Senator Sasse, I think one thing that’s worth pointing out is that, in the academy, in any event, where I spent a large portion of my career, originalism is not necessarily a conservative idea. There is a whole school of thought, and so originalists are now a very diverse lot, and there is a school of originalism that’s more of a progressive originalism, and it’s very committed to keeping the constitution’s meaning, just interpreting texts just the way all originalists do to say that it was – has the meaning that it had at the time that it was ratified – but they tend to read it at a higher level of generality. So, all originalists don’t necessarily agree. In fact, there is an advocacy group called The Constitutional Accountability Center which has routinely filed briefs in the Supreme Court that calls itself – you know, it writes briefs in support of originalism, but taking it from a more progressive standpoint. I think people probably think, oh, it’s only Conservatives who are originalists, but actually it’s a more widely accepted view than that. I think that, if you think about different strains of approaching constitutional texts, originalism is one. All judges and justices take account of history and the original meaning, its just that some weight it differently whereas originalists would give it dispositive weight when it is discernible. Other approaches to constitutional interpretation may take a more pragmatic view and say, in some instances, well, that may have been the historical meaning, but that’s an uncomfortable fit for current circumstances, so we will tweak it a little bit to adjust it to fit these circumstances, that situation. Sometimes it’s called living constitutionalism, the constitution can evolve and change over time. Sometimes it is called like a more pragmatic constitutionalism.
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Ben Sasse
So, I want to make sure we establish this fact clearly together, because one of the things that I think is really unhelpful for the American people when they see hearings like this over the last twenty years, is there is an assumption that those of us who’ve advocated for you over the course of the last three years must be doing it because we know something about your policy views and we’ve seen the beautiful mind conspiracy theory charts, for instance, that this is about specific outcomes that people want. What I want is to have a judge who doesn’t want to take away the job of a legislature that’s accountable to the people. What I want is to be sure that the two political branches that are accountable to the people because they can hire and fire us are the places were policy decisions are made. So, what you are saying is, in the legal academy, there are people who agree with you on originalism as a broad philosophical school, and yet would come out very different places on the outcomes of particular policy decisions.
Amy Coney Barrett
That is what I am saying.
[End of Day 2 Part 2]
[Start of Day 2 Part 3]
John Kennedy 00:48:17
I went back and took a look at Heller. Scalia wrote – you know this better than I do – Scalia wrote the majority opinion. I think Stevens wrote the leading dissent. And it was interesting they both took an originalist approach. And I went back and looked it up. Scalia relied on – tell me what an originalist approach is again? I know there are different strains, but what’s your strain?
Amy Coney Barrett
Sure. You take the constitution – so, in Heller, for example, what justice Scalia did, and this is an example of originalism, he went back to the time of the ratification of the second amendment to figure out whether when people, when that amendment was ratified, whether that right to bear arms was considered to be an individual right or one that was a civic right.
John Kennedy
Excuse me for interrupting, but considered by whom?
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Amy Coney Barrett
Considered by the people at the time, not in the minds of the framers.
John Kennedy
I’m sorry.
Amy Coney Barrett
No, no, no.
John Kennedy
I’m having a little coffee. I’m kind of jacked up. I went back and looked it up. Scalia, he relied on, to reach his opinion, he relied on founding era dictionaries, founding era treatises, English laws, American colonial laws, British and American historical documents, colonial era state constitutions, post-enactment commentary, all on the Second Amendment. And then here comes Justice Stevens, he’s dissenting. He relied on, in his dissent, he relied on linguistic professors, an 18th century treatise on synonymous words, on a different editor of one of the same colonial era dictionaries on which Scalia relied. So they both went back to look at history. Here’s my question. Since when did justices become historians? Let me put it another way. If this is the way we’re going to interpret the constitution, by looking at history, why do we need you guys? Why don’t we just hire professional historians?
Amy Coney Barrett
Well, so, justices and judges interpret laws, and we interpret text. And if texts are unclear, you have to figure out what their meaning is. Right? And so with the constitution, sometimes that does require delving into history. One point that I think is, Justice Scalia would make this point, that the alternative is, let’s say you have an amendment like the Second Amendment’s right to bear arms. If it’s not evident looking at it whether it is an individual right or a collective right for the sake of the militia, one approach would be to rely on the moral judgments of the judge, of the justice, to say whether they think it’s a good thing or bad thing for the common good for people to have that individual right. And of course, judges aren’t moral philosophers either. So, when you are interpreting a text and you need to turn to something, what judges know is words and what judges know is law. And so, having them go back and look at the history, those are familiar things to lawyers. And there are things that all justices consider, as I said earlier in the hearing, all justices do consider the history of original meaning. And that’s been true since the beginning of the court itself, throughout the 19th century. The idea of originalism isn’t new. So, throughout the 19th century and all throughout the 20th, the court has resorted back and looked to see what the original meaning is. It’s just that, I would say the difference between those who identify themselves as, you know, originalists, and those who just consider it as the amount of weight that they give it. So, all judges have to be skilled in doing it to a degree because everyone agrees, as a matter of law, the original meaning matters.
John Kennedy
Tell me what the Ninth Amendment means.
Amy Coney Barrett
Well. The Ninth Amendment was once famously described by Judge Bork as an ink blot. The Ninth Amendment has not been fleshed out in litigation. I don’t think it is an ink blot, just to be clear, but it’s not one that there’s a whole lot of case law on.
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John Kennedy
I want to talk to you a little bit about originalism, or at least your strain, and how it’s related to textualism. and how it’s different from purposivism. Did I understand you correctly to say that an originalist believes the judges have to follow the original public meaning of the Constitution?
Amy Coney Barrett
Correct.
John Kennedy
The original public meaning.
Amy Coney Barrett
Public meaning as distinguished from private intentions of those who drafted the document.
John Kennedy
Does this mean, when you see original public meaning, whose meaning? The average person in the community at that time?
Amy Coney Barrett
Well, we would say informed observers. I would say informed observers, like those who are familiar with the debates. Which is why looking at the state ratifying conventions, debating the Constitution can be a fruitful source.
John Kennedy
I know it’s not OK to do it exclusively, but is it OK to consider what the drafters thought?
Amy Coney Barrett
Sure. James Madison’s notes from the constitutional convention are a source that the Court routinely looks to in trying to determine original meaning. It’s just that it’s not conclusive.
John Kennedy
What is the dimension of time? Meaning, at what point in time do you look at the original public meaning?
Amy Coney Barrett
Well, I would say there’s some debate about that because you, you know, you won’t necessarily have all the evidence you need right from 1791, which is when the bill of rights, as you know, was ratified. I think looking at the evidence from before that, we see that in Heller. that Justice Scalia looked at how people understood that right all the time leading up to the ratification of the Second Amendment because it cast light on the language people were speaking at the time and how they would have understood it. So you definitely can look some before.
John Kennedy
OK. If you look at 10 years after the Constitution’s adopted, is that ok? How about 20?
Amy Coney Barrett
I think all of that can be relevant evidence. I think the farther that you get away from the ratification of the document, then I think the dicier it gets because we might say that, you know, between 1791 and, you know, 1801, that people have roughly the same understanding. but of course, as time passes, you know, then, attitudes can change. So, I wouldn’t say that there’s a certain cutoff, but I think it’s clearly the case that the evidence that’s closer to the time is the most probative.
-16-
John Kennedy
OK. What’s the difference between originalism and textualism?
Amy Coney Barrett
Well, textualism is how we describe a method of interpreting statutes. So, it actually, in many respects, is kind of, like, originalism applied to a statute. So, it would, say, you take statutory texts, you know, for the clean water act or, make up one, the Amy Barrett Act passed today. You look at what the words would have meant to those who read the Act at the time and informed observers of the debate.
John Kennedy
So you’re looking at the ordinary meaning of the words?
Amy Coney Barrett
You’re looking at the ordinary meaning of the words.
John Kennedy
The plain meaning of the words.
Amy Coney Barrett
The plain meaning of the words.
John Kennedy
What if they’re unclear?
Amy Coney Barrett
Well, there are a series of canons of interpretation that judges employ to decipher language. They’re like linguistic tools. Like, sometimes the list means the expression of some things implies the exclusion of others.
John Kennedy
I’m familiar with all those. You know them better than I do, but if the statute’s unclear, if there is no ordinary meaning, can you look at legislative history?
Amy Coney Barrett
Generally, I think that legislative history is the less fruitful source because generally, when people make arguments about legislative history, they tend to be less about what a word meant and how a statute would apply to a certain circumstance, which is a little bit different.
John Kennedy
But, if it’s ambiguous, you can look at legislative history as a last resort.
Amy Coney Barrett
You can look at legislative history to determine whether there was a particular understanding of a word or a phrase, but I think it would be, in most cases, inadvisable to look at legislative history to make a determination. Certainly not to treat it as binding about how a statute would apply to a particular set of facts.
-17-
John Kennedy
How ambiguous – a lot of text would say, if the statute’s ambiguous, if it’s unclear, I can consider secondary sources. How ambiguous does it have to be? 51%? 65%? How do you know how ambiguous?
Amy Coney Barrett
Well, it’s not a precise – It’s an art, not a science, I would say, Senator Kennedy. You know, you exhaust all the canons of interpretation, and that includes even ones that are not the grammatical canons, but are likely avoidance canon. You run through all of those and then you look at the structure of the statute. And, I mean, I think deciding when something crosses the threshold in becoming ambiguous so you can consider canons like the rule of lenity, or the avoidance canon. You know, that’s a very difficult question. It’s part of the debate about the chevron doctrine.
John Kennedy
Are you familiar with the term purposivist?
Amy Coney Barrett
Yes.
John Kennedy
I think, -- you correctly now. A purposivist says, look, I look at the statute, even if it is clear, I can still look at secondary sources and try to figure out what problem the legislative body was trying to solve.
Amy Coney Barrett
That is so, yes. The purposivist would say that to be faithful to Congress would be to be faithful to the purpose of the statute, and that sometimes the text doesn’t align exactly with the purpose. In that circumstance, the judge should go with the purpose rather than the text.
John Kennedy
Now. Everybody’s a textualist now, or an originalist. But, really, aren’t a lot of our textualists really purposivist? In other words, they go, Well, hope that the language in the statute, it’s unclear, so I checked off the originalist, or, rather textualist box, and now I can just go look and what problem Congress was trying to decide and do whatever the hell I wanna do.
Amy Coney Barrett
There has been some academic commentary, definitely in the last five or 10 years, saying that’s become the new strain of textualism. You might know the case Holy Trinity.
John Kennedy
Yeah.
Amy Coney Barrett
Yeah. Calling it –
John Kennedy
It’s been overruled, hasn’t it?
Amy Coney Barrett
Holy Trinity – you mean its approach to statutory interpretation and endorsement?
-18-
John Kennedy
Yes.
Amy Coney Barrett
No. It’s never been overruled, but it’s fallen out of favor. But, this idea of doing what you’re saying, stretching to find ambiguity in text, the argument that some make is that it’s kind of a new form of Holy Trinity because rather than saying that the text is clear but inconsistent with the purpose, the argument is that the purpose renders the text unclear.
John Kennedy
Let me ask you a couple more. I want to talk about a state constitution. In Louisiana we had a constitutional convention in 1973. We wrote a new state constitution, and we recorded everything. We got, I think 14 volumes of transcripts, committee reports. anything you could possibly want to know about the drafting of the 1974 Louisiana constitution. You’re an originalist. Are you telling me to just throw all that stuff out?
Amy Coney Barrett
No. Those things would be the equivalent of looking at James Madison’s notes from the constitutional convention, or state ratifying conventions. All those things shed light on what Louisianians were thinking when that constitution was drafted and ratified.
[End of Day 2 Part 1]
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