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New justice will say what the law is

The Senate has spoken. In what has now become a wholly partisan exercise, another justice has been confirmed to the Supreme Court, this time without a single vote from the minority party.

Justice Barrett’s mentor, Antonin Scalia, and her predecessor, Ruth Bader Ginsberg, were both confirmed with near unanimity. The recent spectacle was saddening for those of us who respect Justice Barrett personally and professionally for non-partisan reasons.

One of us has been a witness to her integrity and generosity for 25 years. What can be done about the political war judicial confirmations have become?

The most energetic criticisms of Justice Barrett came from fears about the results of her future rulings. Would health care be jeopardized by a vote to strike down the Affordable Care Act as unconstitutional? What about abortion? Now that Justice Barrett is on the Court, that energy has shifted to adding seats to the Court to achieve the desired outcomes.

As a law student and practicing lawyer, we care very much about results. But achieving good outcomes on a national scale, over generations, involves more than the outcomes within our immediate view. As Justice Ginsburg famously noted, the way in which Roe v. Wade was decided had collateral consequences. In her view, by rendering unconstitutional nearly every abortion restriction in the country, the Court helped provoke the pro-life movement and the polarized national debate that followed. The decision “invited no dialogue with legislators,” she wrote. “Instead, it seemed entirely to remove the ball from the legislators’ court.” Roe provoked polarization.

Politicized battles over Supreme Court confirmations are a case of “Be careful what you wish for – you might get it.” The living Constitution principle that well-meaning liberals worked so hard to enshrine makes the Constitution speak to nearly every issue in American life. This in turn tasks the Supreme Court with discerning and implementing each new generation’s values – in other words, being an uber-legislature. Courts can provide this fast way to get results on societal issues. But, as anyone who has lived long enough to experience failure may have learned, the fastest way to a result might not be the best way.

Three kinds of solutions are being offered to address the concern that a new unelected justice will sit for life and could impose results in which people had no say. One kind would push the Court toward democratic accountability, imposing term limits on justices or equalizing appointments between parties. But the more democratically accountable the Court is, the less it can rely on reason, the more it is subject to popular will. Its historically important role of protecting minorities would be compromised. Careful what you wish for, because times can change.

A second proposed solution is to pack the Court. This is an old-fashioned way (gerrymandering for the judiciary) of just winning the battle for results. The problem is it can be only temporary. In time, a president from the other party will fill those seats.

The third option is to find judges to referee the law and leave changing it to the people’s representatives. This via media happens to be the founders’ vision: Judges call balls and strikes using laws passed by democratic majorities within the boundaries of what was passed by democratic super-majorities in the Constitution. Under this structure, no one gets a law imposed in which she had no voice.

The country has learned this is the kind of judge Amy Coney Barrett is. One of us – Ben Allison – has known her since law school and can confirm what is also obvious to all: it is not a role she assumed for convenience, it’s who she is. As an originalist, she has profound respect for democratically enacted law. Our progressive friends have less reason to be dismayed than they may think. Justice Barrett will say what the law is. If we don’t like it, we can change it. That is, after all, the meaning of the rule of law.

Ben Allison is an attorney and Billy Trabaudo is a law student at the University of New Mexico. Both live in Santa Fe.

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