AP Explains: Originalism, Barrett’s Judicial Philosophy

0
112

Supreme Court nominee Amy Coney Barrett speaks during the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Oct. 13, 2020. (Samuel Corum/Pool via AP)

Supreme Court nominee Amy Coney Barrett speaks during the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Oct. 13, 2020. (Samuel Corum/Pool via AP)

President Donald Trumps Supreme Court nominee, Judge Amy Coney Barrett, has made her judicial philosophy clear through opinions, speeches and other writings. She describes herself as an originalist in the mold of her mentor, Justice Antonin Scalia.

WASHINGTON: President Donald Trumps Supreme Court nominee, Judge Amy Coney Barrett, has made her judicial philosophy clear through opinions, speeches and other writings. She describes herself as an originalist in the mold of her mentor, Justice Antonin Scalia.

Here’s a look at the judicial philosophy of originalism, what Barrett says about it and the philosophy’s opposite:

___

ORIGINALISM

Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers intentions in resolving legal disputes. Originalists argue that new legislation, rather than new interpretation of the Constitution, is the best way to bring about social change and safeguard minority rights. Originalists say relying on text doesnt mean they cant grapple with contemporary phenomena, such as the radio or Internet.

___

BARRETT ON ORIGINALISM

Asked Tuesday to explain originalism in English, rather than legalese, Barrett said the following: So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesnt change over time. And its not up to me to update it or infuse my own policy views into it.

___

ORIGINALISM’S OPPOSITE

The judicial approach that is originalism’s opposite is sometimes referred to as the living constitution, loose constructionism or modernism. This judicial philosophy considers the Constitution to be a living document, able to encompass societys changing, evolving values. Judges who approach decisions this way are sometimes called activist judges by critics.

___

GINSBURG’S PHILOSOPHY

Justice Ruth Bader Ginsburg, whom Barrett would replace, embraced the idea of a more elastic Constitution. While she and Barrett’s mentor, Justice Scalia, were friends, their judicial philosophies were opposite.

Speaking to groups, Ginsburg often approvingly cited the lines of an opera written about their friendship which at one point sets out an explanation of their differing philosophies in song. The Scalia character sings a “rage aria” that begins, The justices are blind, how can they possibly spout this, the Constitution says absolutely nothing about this.”

Ginsburg liked to repeat the lines of her response: Dear Justice Scalia, you are searching for bright-line solutions to problems that dont have easy answers. But the great thing about our Constitution, is that like our society it can evolve.

Disclaimer: This post has been auto-published from an agency feed without any modifications to the text and has not been reviewed by an editor

Leave a Reply