Barrett taught me meaning of originalism – it’s not what you think
As her former student and law clerk, I am thrilled by Judge Amy Coney Barrett’s Supreme Court nomination. In the time I have known her, I have been impressed by her scholarship, integrity and humanity. But I also learned important lessons from Judge Barrett about what it means to be a judicial “originalist” and why originalist judging is so valuable in our constitutional system.
One common view of constitutional interpretation — especially when a nomination is the subject of national attention — suggests that judges are nothing more than politicians in robes who use legal arguments to enact their own policy preferences. This view is known as “legal realism.” Despite Chief Justice Roberts’s recent statement that we “do not have Obama judges or Trump judges, Bush judges or Clinton judges,” it can sometimes be tempting to conclude that the federal bench might indeed be occupied by judicial politicos using legal language to stealthily reach their own preferred policy outcomes.
I can confidently say that
this is not how Judge Barrett approaches the law. I met Judge Barrett during my first year at Notre Dame Law School when she hired me as her research assistant. As a scholar, Judge Barrett is a well-known proponent of originalism. Originalism holds that, when interpreting the Constitution, judges
must be guided by the meaning of the words that the people chose to put into law, as those words were originally understood at the time of the law’s passage. This requires judges to set aside their individual political views and uphold instead the will of the people as reflected in the meaning of the
words of the Constitution.
Because originalism is focused on this objective measure, it does not lead inexorably to politically conservative outcomes. Rather, it will lead the faithful originalist to wherever the meaning points — left, right or center. As then-Professor Barrett’s research assistant, I was never set to the task of finding the evidence to shore up a preordained conclusion or policy preference. Instead, when there was a difficult constitutional question to answer, she set us to the hard work of doing research. What did these words mean when the people or their representatives voted for or ratified this provision? How did early courts apply this provision after it became the law? It was a rigorous process. There was no way of knowing the outcome beforehand. Her scholarship depended on knowing what the law was, not what she wished it to be.
On the appeals court, Judge Barrett brought the same commitment to a clear-eyed understanding of the law that I saw while she was a professor. As a law clerk to Judge Barrett, I had the privilege to see firsthand exactly what it means to put originalism into action as a judge. When Judge Barrett decided cases, she didn’t merely set aside any policy preferences she may have had — they never factored into her work in the first place. In any given case, Judge Barrett didn’t ask herself, “What do I think is the best outcome?” Instead, she asked, “What is the right answer? What does the law require?” And once she identified the answer, Judge Barrett would follow it, whether she might have agreed with it politically or not. Judge Barrett showed me by example that originalism can ensure that the Constitution is faithfully, fairly and transparently applied, regardless of the issue before the court or the preferences of the judge deciding the case.
After having been her student, research assistant and clerk, I can confidently say that Judge Barrett’s commitment to originalism helps her to be a fair, impartial and apolitical judge — exactly the kind of judge that America needs on the Supreme Court at this historic moment. If you want a justice who is fair and evenhanded, you want Amy Coney Barrett — not despite, but because of her originalism.