Amy Coney Barrett will cement the legacy of Republicans if confirmed

Amy Coney Barrett will cement the legacy of Republicans if confirmed
© Getty Images

Supreme Court nominee Amy Coney BarrettAmy Coney BarrettCourt watchers buzz about Breyer's possible retirement Five hot-button issues Biden didn't mention in his address to Congress Conservative justices split in ruling for immigrant fighting deportation MORE claims to be a textualist and originalist on the Constitution, and the Senate examination of her judicial views could focus on such commitment to those approaches. Given the relevance of that examination, we must understand three ideas.

First, embracing textualism and originalism is like embracing any other philosophy. It is a personal choice and not a mandate. There are several other methods to interpret the Constitution. Textualism and originalism are not exclusively authoritative. They are two of numerous approaches, including reliance on history, stare decisis, ethical principles, economic efficiency, fundamental values, and consideration of our shifting society and the probable practical effects. From the earliest years of the United States, the judiciary has relied on all those different methods.

Second, textualism and originalism on their own terms are not the actual methods but only generic labels for imprecise and contested approaches. They both come in numerous varieties and provoke basic differences even among their strongest advocates. Neither textualism and originalism has or identifies rigorous and standard rules of interpretation.


Textualism lets judges select among different definitions, word choices, and generality levels. The conservative Supreme Court justices strikingly demonstrated its often indeterminative nature when they split sharply in the recent decision in Gerald Bostock versus Clayton County. Justice Neil Gorsuch wrote for a majority claiming to rely on textualism, while Justices Samuel Alito and Brett Kavanaugh rejected his reasoning as contradictory to their own versions of textualism. The textualism of Gorsuch, as charged by Alito, was like a “pirate ship” sailing under a false flag.

Originalism is even more pliable and manipulable. It invites arbitrary uses of complex and conflicting materials from our history to reach outcomes guided by ideological leanings. In District of Columbia versus Dick Heller, the Supreme Court split closely on interpreting the Second Amendment, producing two elaborately researched but totally contradictory views of its core intended meaning. Originalism is so insufficient and malleable that Judge Learned Hand dismissed it as simply fatuous.

Third, the use of textualism and originalism has been dominated by those driving the reorientation of the Republican Party. As it turned to embrace a southern strategy, capitalist markets, cultural warfare, and conservative stances in the last few decades, many of theorists and judges appealed to carefully designed versions with both approaches, deploying them out to justify constricted interpretations of the Constitution and directing their applications to serve its political and social goals.

So what is decisive in evaluating Barrett is not the formal labels that she invokes but the political and social premises and values she infuses into her application of those approaches. To this point, her writings suggest strongly that those premises and values are those that serve the goals of the Republican Party and its conservative agenda.

It is notable that Barrett was a law clerk for Justice Antonin Scalia, as she claims to share his judicial views and principles. Her personal allegiance to Scalia and his jurisprudence, not her adoption of the labels textualism and originalism, are the conclusive facts, for his jurisprudence and career in the judiciary reveal the operative political and social significance of the two approaches he advocated and she claims to follow.


Scalia heralded a commitment to textualism and originalism, however, he shaped both to consistently advance conservative policies. Further, when the two approaches did not serve those purposes, he readily abandoned them in favor of other interpretive methods and types of reasoning. While inconsistent in his judicial practices, he was just as consistent in adopting interpretive devices that would ensure conservative results.

Those results inspired the Republican Party to trumpet Scalia as their own judicial hero and fueled the nomination of judges who were as similar to him as possible. When Justice Anthony Kennedy resigned two years ago, Vice President Mike Pence declared that President Trump would appoint a “strong conservative” in the tradition of Scalia, who became the standard bearer of the right not because of the textualism and originalism he liked, but because of the way he had twisted or abandoned those approaches to advance the conservative agenda of the Republican Party.

If Barrett is confirmed to the Supreme Court, and if she follows the judicial practice of Scalia as she has hinted, then expect similar results. Why else is the Republican Party rushing to confirm her to the bench? They believe that she will be the same kind of justice that Scalia was.

Edward Purcell sits as the Joseph Solomon distinguished professor at New York Law School and is an author whose latest book is “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon.”