CommentaryJudge Amy Coney Barrett’s confirmation would not have happened if more than two Republican Senators had earlier stood up against the rush to confirm a new Supreme Court justice in the blazing heat of a highly contentious election and in a climate suggesting the basest of partisan motivations.
Had Republican Senate ranks contained more true “conservatives” – rejecting short-term opportunism in favor of longer-term conservation of our governmental institutions and the rule of law – our country, our Court, and our Constitution could have avoided the very real damage Barrett’s confirmation threatens. We could have escaped the seemingly inevitable decline in confidence that the Supreme Court can perform its essential role as an independent check and balance in our constitutional system. (The Court’s reputation seems especially vulnerable, given statements by President Trump and others suggesting that the Barrett choice and rushed confirmation seek nakedly short-term political goals, including enhancing the likelihood of winning, if Republicans mount post-election judicial challenges.)
Americans of all political parties and ideological stripes should deeply regret the lack of principled conservatism. And, especially because many JURIST readers may not know about the courageous counterexample I witnessed as a young Senate staffer almost four decades ago, this Commentary explains how the present conscience vacuum is not the way it always has been or had to be.
In the early 1980’s I watched a bipartisan group of Senate Republicans and Democrats – liberals and conservatives — put short-term political opportunism aside to protect longer-term constitutional values and the rule of law. The comparison between the Trump/McConnell attack on judicial independence and the previous era’s threat to pass “court-jurisdiction stripping” legislation isn’t exact; the Trump/McConnell move worked by manipulating appointments to judicial vacancies, whereas (as explained below) court-jurisdiction stripping seeks to negate the Court’s ability to decide cases on particular subjects. But major similarities connect the constitutional contexts and serious risks.
In the early days of the Reagan era, legislators proposed an unprecedented number of “court-jurisdiction-stripping” bills to strike back against disfavored Supreme Court rulings invalidating school prayer, promoting abortion rights, and allowing busing to achieve school desegregation.
As the name implies, court-jurisdiction stripping seeks by ordinary legislation to “reverse” the direction of constitutional rights by stripping the Supreme Court, and in some versions, lower federal courts, of the power to establish or elaborate key constitutional doctrines. The cynical calculation is that the constitutional limits and protections targeted by the jurisdiction-stripping legislation will alter or degrade over time without the federal judiciary being able to provide a meaningful check.
Luckily for our constitutional democracy, in the earlier time frame a bipartisan group of Senators, including indisputably conservative Republican Senate lion Barry Goldwater, joined William French Smith, President Reagan’s Attorney General, and scholars of widely variant ideologies to oppose court-jurisdiction stripping. The foresight of the conservative opponents is especially laudable, as they likely agreed with the short-term political objectives behind at least some of the court-jurisdiction-stripping bills. (Around the same time, bona fide conservative Judge Robert Bork stated in his confirmation hearings that the Constitution’s Framers did not intend to allow court-jurisdiction stripping “as a means of blocking a Supreme Court that had, in Congress’ view, done things it should not.” )
So what does all this ancient history have to do with the present era’s ramming through of a Supreme Court nominee in the middle of an election already underway in some states? A lot, it turns out.
As with court-jurisdiction stripping, the confirmation of Judge Barrett threatens to further erode the critical ingredient the Supreme Court and its justices need to restrain, as they have at some critical times in our nation’s history, overreaching by public officials from both political parties and various ideologies. The Court’s ability to play honest constitutional brokers – especially in a highly polarized political environment – is rooted in public confidence that the justices individually and collectively are able to render rulings that to the extent humanly possible rise above short-term politics in favor of longer-term, rule-of-law values.
The nakedly partisan Barrett confirmation immediately before a presidential election – in obvious conflict with Senator McConnell’s refusal to consider Obama nominee Merrick Garland a full nine months before the 2016 election, so that voting Americans would have “a voice in the selection of their next Supreme Court Justice” — threatens a similar stripping of public confidence; it casts new-Justice Barrett and the Court she joins in the crassest political light.
Because the rush to confirm Barrett sought to expand the conservative dominance of the Court and negate the present possibility that some important issues can go either way (depending upon how Chief Justice Roberts votes), both court-jurisdiction stripping and the election-eve confirmation appear designed to achieve a basic turnabout in certain key constitutional-law principles and the future output of the Court. Both court-jurisdiction stripping and the Barrett confirmation can look like attempts to rig the short-term outcome in cases on the immediate horizon.
Court-jurisdiction stripping and the Barrett confirmation share a final similarity. In both cases, constitutional text read in isolation seems to allow the practices. Jurisdiction-stripping relies on Article III’s bland grant of power to Congress to make “Exceptions” and “Regulations” to the Supreme Court’s appellate jurisdiction. Constitutional sanction for the Barrett confirmation rests on Article II’s unqualified authority to the president to nominate, “and by and with the Advice and Consent of the Senate,” to appoint federal judges (among others).
But, as with most of the Constitution’s brief and general provisions, isolated clauses must be read in the context of the broader constitutional design and the Framers’ objectives. Both Judge Bork and Attorney General Smith made exactly this point in rejecting the constitutionality of court-jurisdiction stripping. (Indeed, one wonders how now-Justice Barrett would interpret the “original intent” of the Framers in this context!)
Those rejecting court-jurisdiction-stripping efforts in an earlier era wisely saw that the true “conservative” practice was to preserve the Framers’ choice to substantially insulate the Supreme Court from partisan political influences. If only cooler consideration had again prevailed this time!
Glenn C. Smith is a professor of Constitutional Law and Supreme Court Decision-Making at California Western School of Law in San Diego. From 1979 to 1983, Smith served as a staff counsel to the U.S. Senate Governmental Affairs Committee. He is the principal co-author of “Constitutional Law for Dummies (John Wiley & Sons, Inc. 2011)”.
Suggested Citation: Glenn C. Smith, Where Were the Real “Conservatives” When We Really Needed Them?, JURIST – Academic Commentary, October 26, 2020, https://www.jurist.org/commentary/2020/10/glenn-smith-judge-barrett/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
