As the hearing to consider the Supreme Court nomination of Judge Amy Coney BarrettAmy Coney BarrettProgressives see Breyer retirement as cold comfort Schumer vows to vote on Biden Supreme Court pick with 'all deliberate speed' Breyer to retire from Supreme Court MORE gets underway, the American public will hear some senators insist that she should be rejected because of her position on certain public policy issues. Others will say that she should be confirmed because of policy stands on the same issues. Both sides are wrong.
Judge Barrett is not likely to express a position on any policy issue — and will be right not to do so. We must select justices based not on how their rulings might affect policy outcomes, but on whether they will uphold the plain text of the law and the Constitution and protect the fundamental freedoms of all Americans.
Courts are not a tool to drive a policy or political agenda. Judges are not legislators. A judge who decides cases based on those criteria is antithetical to an independent judiciary. The appropriate role of the courts is simple but significant: follow the Constitution, interpret the law as written, and protect our civil liberties. This is why it’s crucial to confirm qualified, independent-minded judges whose loyalties are to the Constitution and nothing more.
Before it details our fundamental freedoms in the Bill of Rights, the Constitution first protects those freedoms by enumerating what each branch of government is allowed to do. Each branch’s power is checked and balanced by the others. An independent and well-functioning judiciary, as defined by Article III of the Constitution, is central to upholding the rule of law and to ensuring that neither the legislative nor executive branches can infringe our freedoms.
This separation of powers matters to us and it should matter to everyone. Some treat the Court as a super-legislature, providing policy wins that policymakers in Congress didn’t. But we reject that approach. Our constitutional order is more important. It is Congress’ job, as our elected representatives, to pass legislation. It’s the courts’ job to make sure it is lawful.
Supreme Court nominations ignite partisan passions. But those passions arise precisely because the courts, and the federal government more generally, are too often not operating according to the constitutional design. That a lone Supreme Court vacancy on what the Founders thought was “the least dangerous branch” of government seems so pivotal demonstrates just how outsized the role of the courts has become.
Courts play a critical role in our system of government and we join with many organizations across the political spectrum to make legal arguments to support immigration, protect free speech, and reform the criminal justice system among others.
Our briefs in these cases confirm this vision. We will stand with anyone in defense of the rights guaranteed by the Constitution — with the ACLU in defense of the right of peaceful protest and free expression, with the NAACP Legal Defense and Education Fund, Public Justice, and the Brennan Center in defense of the First Amendment rights of incarcerated individuals, and too many more to name.
While others may support judicial nominations to try to guarantee a particular policy outcome, Americans for Prosperity take a different approach. We speak out not on the basis on any particular policy, but to elevate the voices of millions of Americans who count on our constitutional order, the rule of law, and the civil liberties outlined in the Bill of Rights.
The most important question facing the Supreme Court is not any specific policy issue, but whether it follows the Constitution.
There should be no political or outcome-driven litmus test for judges. That’s why we back judicial nominees who reject the idea that courts should rewrite legislation and who have a record of holding the other branches accountable — not to favored policy outcomes but to the law and the Constitution as written. Amy Coney Barrett is such a nominee.
Casey Mattox is vice president of legal and judicial strategy at Americans for Prosperity.