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Why Judge Barrett's legal philosophy is deeply antidemocratic

Supreme Court nominee Judge Amy Coney Barrett on

Supreme Court nominee Judge Amy Coney Barrett on Oct. 1, 2020, at the Capitol in Washington. Credit: AP/Caroline Brehman

Many think that the appointment of Judge Amy Coney Barrett to the Supreme Court will jeopardize the Affordable Care Act and abortion rights. But the reach of her antidemocratic judicial philosophy will go beyond those issues to put every federal law that conservatives oppose in danger.

Barrett, who has been on the federal bench for less than three years, is a conservative star because of her writings supporting the theory advocated by the late Justice Antonin Scalia known as "textualism." This judicial philosophy is fundamentally at war with democracy. It would allow the court to rip apart laws that voters need and want.

Consider the litigation over Obamacare and its guarantee to protect people with preexisting conditions. There have been three challenges to that complex law. The first case, National Federation of Independent Business v. Sebelius in 2012, upheld the constitutionality of most of the ACA, though seven justices voted to limit the law's provision to expand Medicaid. Barrett's mentor, Scalia, voted in dissent to find the entire law unconstitutional.

Then in the 2015 case, King v. Burwell, opponents of the ACA challenged it again, claiming that a drafting error in the 900-page statute was sufficient to strike it down. The text of the law used the phrase "by the State," which the opponents argued did not allow for federally run health exchanges, a reading that made no sense given the context of the entire law.

Fortunately, the Supreme Court, by a 6-3 vote, rejected that argument and allowed the ACA to stand. Scalia, applying textual analysis, voted to dismantle the act essentially because of a "scrivener's error."

A third ACA case is now pending before the court, with oral arguments scheduled one week after the November election. It, too, challenges the constitutionality of the law, based on how you "read" the ACA's provisions.

Here's the problem with this "reading law" philosophy that Barrett has defended. On the surface, it sounds perfectly plausible — just read the text of the law. But that's not what Scalia/Barrett textualism does. Textualism is a power grab for judges. In practice, it allows judges to carve up the text, picking a word here or there to reach the results the interpreter prefers.

The whole point of textualism is that Congress's views don't matter. Textualism deliberately blinds justices to the one source that could constrain their biases: official congressional materials such as committee reports or debates. As a result, you get congressional legislation rewritten by unelected judges.

Barrett is an extremely eloquent and zealous defender of Scalia's legacy, as her writings show. Because I have debated her, and other judges, on this question, I know what she will say.

Barrett will say that her approach is more democratic, because she looks at the "ordinary meaning" of text. Senators voting on her nomination should not be lulled into agreement.

Ordinary people do not read 900-page health care statutes. And no ordinary person, or member of Congress, or linguist for that matter, thinks you can understand "Moby-Dick" by pulling out a word and throwing the rest in the ocean.

Barrett will argue that textualism is a better alternative to having judges pick and choose congressional materials to suit their wishes when looking for a statute's intent. Again, senators should push back. Textualist judges pick and choose the text. Worse, textualists even add text. Scalia famously wrote that the president has "all" executive power, but the Constitution does not say that.

Barrett will contend that textualism constrains judges and is more predictable than statutory interpretation. Yet last term, Justice Samuel A. Alito Jr. accused Justice Neil M. Gorsuch's majority opinion in Bostock v. Clayton County, the case ruling that federal civil rights law protects gay and transgender employees from discrimination, of being "like a pirate ship." Alito said "it sails under a textualist flag," but actually uses statutory interpretation to reach Gorsuch's preferred result.

Finally, no one should think that there's anything traditional about Scalia's textualism approach. William Blackstone, the 18th century jurist, told judges to look at the text and the reason for the law, the problem people wanted to solve. For most of our history, that is what judges did. They did not cut Congress out by refusing, as textualism requires, to look at direct evidence of Congress' meaning.

Some conservatives agree that textualism is a judicial power grab. Judge Richard Posner, a leading conservative legal thinker, once called the theory "autistic" precisely because it refused to look at human purposes. In a critique of Scalia's textualism, he described the method as incoherent and motivated to "hobble" legislation. As he wrote in "How Judges Think," textualism is "bad philosophy, bad psychology, and bad law."

In the past, Republican Sens. Orrin G. Hatch and Charles E. Grassley have said that they disagreed with Scalia's "blind to Congress" approach. They recognized that textualism is allied with the court's growing contempt for Congress and legislative power. In Barrett's confirmation hearings, the Senate needs to understand the consequences of this philosophy and resist its anodyne veneer.

Victoria Nourse is the Ralph Whitworth Professor of Law at Georgetown University Law Center, former special counsel to the Senate Judiciary Committee and author of "Misreading Law, Misreading Democracy." This piece was written for the Los Angeles Times.

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