An Amy Barrett Video

 

Hesburgh Lecture 2016: 

Professor Amy Barrett at the JU Public Policy Institute

The video is slightly less than an hour. It  is Amy talking to ND Law alumni and friends. It occurred on November 3, 2016, right before the election. It was posted in on December 5, 2016. 

Basically she discusses the implications of the election for the future of the Supreme Court.  The fear that she expresses is what happens if Hilary is elected since it is likely she will be able to appoint four people to the Supreme Court. Of course the big lost has been the death of her idol, Judge Scalia. What about Trump? "Who knows?" is her answer. She is skeptical that he will go with someone on the list that he had published.

The hour is an excellent introduction to the meanings of conservative and liberal as applied to Supreme Court which she insists are not the same as conservative and liberal as applied to partisan politics.

Conservative as applied to the Supreme Court she connects to the Scalia doctrine of originalism which she defines as interpreting the Constitution as federal law in light of the text as is was understood at the time of its adoption even in applying it to situations that the authors did not foresee. She contrasts this with liberal interpretations (or the living Constitution) which allow judges to decide how the law might be better understood or applied by taking into consideration how things have changed.

She says that Scalia greatly valued democracy and saw the law as it was in its origins as an expression of  democracy, and any alteration afterwards by the Courts as not being an expression of democracy. Later on she says that what is at stake in Supreme Court rulings is "Who shall decide?'  i.e. the courts or the people through the legislature.

She points out that although Scalia was a very law and order person when he worked in the Justice Department he became a great defended of the rights of the accused on the Court because that is how he read the Constitution, e.g. he defended "flag burning" as free speech not because he approved of flag burning but because the Constitution supported free speech.

The video gives some very good ideas of her likely decision making.  She says Roe vs Wade is likely to remain settled law because of its long history, however some attempts of state legislatures to regular abortion especially in its late stages might succeed. She thinks Citizens United is very vulnerable because it is recent without much history to back it up.  She said a Right to Die was not endorsed because it had very little precedent. 

My sense was that she was very concerned that four appointments by Hilary would have created a young liberal court with many  years in which to establish all sorts of rights, to suicide, to a decent wage, to health care, etc.  All these creating a Court that would be a policy making arm of the government rather than an interpretive body. 

I have no problem with this conservative philosophy of legal interpretation; I think she might actually make a very good successor to Scalia, perhaps even a better version of his philosophy.  I hope she will give a strong message to political conservatives and liberals to settle their policy disputes in the legislature rather than in the courts. 

Unfortunately many of the conservatives appointed to the Supreme Court are conservative libertarians such as Chief Justice Roberts, Justice Gorsuch and Justice Scalia. Barrett does not appear to that type of conservative. 

I found the hour very worthwhile, with no need to follow the hearings first hand or second hand.