Senate Judiciary Committee Chair Lindsey Graham, R-S.C., a former prosecutor, opened the committee's impromptu law school seminar Tuesday with a softball question for Judge Amy Coney Barrett, asking her to define in "real English" just what she and her mentor — the late Justice Antonin Scalia — mean when they refer to "originalism" and "textualism."
To the casual observer, Barrett and Scalia have the imprimatur of history on their side. It follows that if you want to determine how and whether laws fit within the framework of the Constitution, you should just ... read it? The words are right there. Why leave it up to judges operating in today's world who seem poised to consign history to the recycling bin?
But that thinking falls apart when you begin to probe it. I'd go as far as to say it's really the so-called originalists who are overwriting history with their focus on, as Scalia put it, "original meaning."
Rather than as a "living document," Scalia saw the Constitution as "dead, dead, dead." Barrett in her answers so far this week shows that she shares that view. But the narrowness of how they actually apply that idea becomes apparent when you consider the fundamental constitutional shift that occurred after the passage of the 13th, 14th and 15th amendments, as New York Times columnist Jamelle Bouie pointed out on Twitter.
Through this revamping of the Constitution — and through later revisions, like the 19th and 24th amendments — the ideas of the founders themselves have already been superseded in the text. What makes the authors of the first 10 amendments more valid than people like Republican Rep. Thaddeus Stevens, whose contributions in the Reconstruction era delivered broader rights to more people?
When pressed about this through the course of the day, Barrett turned to what's been called the Ginsburg rule — to not comment on cases that might come before her once she is confirmed and seated, or really any case she hadn't written about directly. That might be less of a concern if it hadn't led to her missing what should have been layups for someone who agrees with the text as written, as opposed to someone who can twist legal history to their whims under the guise of following the founders' intent.
Democratic Sen. Amy Klobuchar's question asking Barrett whether intimidation at the polls is illegal went viral — since, you know, it is — but Barrett's lead-up was honestly more telling. Given the chance to cite the 15th Amendment's exceedingly clear language granting Congress the power to protect voting rights, Barrett equivocated, saying she didn't write Shelby v. Holder, a 2013 decision that neutered a key part of the Voting Rights Act.
Since Barrett cited the Ginsburg rule, it's worth noting that the late Justice Ruth Bader Ginsburg was one of the most effusive nominees when it came to answering senators' questions. At least when it came to what's called settled law, provisions of the law deemed to be so established that challenging them would be almost unthinkable. Part of the way laws become settled is through the review of precedents over time, like those set down in 1954's Brown v. Board of Education or, say, 1973's Roe v. Wade.
To her credit, Barrett called Brown a "super precedent," one requiring a case and a controversy to revisit it, something she says she doesn't see happening. But unlike Justice Brett Kavanaugh ahead of his hearing in 2018, Barrett has indicated that Roe doesn't fall under that banner.
Under the original meaning doctrine, those decisions could be swept aside if a case questioning the rights that they draw from the Constitution is brought before the court. So could 2015's Obergefell v. Hodges, which made same-sex marriage legal nationally, as Barrett's fellow originalist Justice Clarence Thomas recently suggested. As it stands, 17 cases that challenge Roe are winding their way up through the courts — just Tuesday night, the 5th U.S. Circuit Court of Appeals struck down a Texas law that banned the most common second-trimester abortion. Roe is coming back to the highest court in the land, and soon. Is it really so impossible to imagine a world in which, after four years of a complete overhaul of the federal courts, a case similarly questioning Brown makes its way up to the Supreme Court?
So the question remains: Which side is the one that's erasing history?
But while we wait for the third day of hearings to start, here's some things you should absolutely be reading:
- The Washington Post: Well, that was a bust. Even though President Donald Trump called the "unmasking" scandal one of the most heinous cases of political malfeasance against him, the investigation wrapped up without finding any wrongdoing.
- Austin American-Statesman: As we prepare for one of the highest-turnout elections ever, the American-Statesman reports that a full 97 percent of eligible voters in Travis County — which includes Austin — have registered to vote. That's about 850,000 people, and honestly, you love to see it.
- New York Magazine: Reporter Olivia Nuzzi went to Rudy Giuliani's Trump <3 Columbus Day party. and all she got was Hizzoner being pretty dang racist:
After claiming that Democrats used the pandemic to take away gun rights, which did not happen, he mentioned the McCloskeys, the couple who wielded guns on the porch of their St. Louis mansion in front of Black Lives Matter demonstrators who were passing by. Giuliani claimed, falsely, that the protesters had yelled, “’We want to rape your wife! We want to rape your wife! We want this for reparations! This is number one for reparations! Biggest house here! Reparations!’” He added, “Nobody knows this, but at the time, their daughter was upstairs under the bed because she was afraid they’re going to come in and they’re talking about rape and they’re going to rape the wife and they’re going to find the daughter.”
- The Daily Beast: I saw this tweet from NBC News' Ben Collins, which I had to stare at for several minutes before believing that it's real, before I read Will Somner's story about it, so here you go:
CORRECTION (Oct. 14, 2020, 11:40 p.m. ET): A previous version of this article misstated where an article by Olivia Nuzzi was published. It was published in New York Magazine, not The New Yorker.