A Big Advance for Constitutionalism: Amy Coney Barrett Nomination Sets the Stage for a New Era for the Supreme Court

R. Albert Mohler, Jr.
September 28, 2020

President Donald J. Trump made history over the weekend as he used his unilateral authority to nominate Judge Amy Coney Barrett to the United States Supreme Court—an event made possible as a seat opened up with the passing of Justice Ruth Bader Ginsburg. If confirmed Judge Barrett would be the 115th American to serve on the Supreme Court.

While the nomination of a justice to the Supreme Court is big news in any given year, it is especially crucial in the political and national context of 2020. Indeed, the Supreme Court has, over the last few decades, assumed a stature and importance not intended by the framers of the United States Constitution. The framers designed the executive branch to provide energy while the legislative branch is responsible for laws and budgetary control.

The judicial branch, however, was often defined as the least dangerous branch of government. But, as it turned out, the progressive left in the United States morphed the federal judiciary into an arm of its political and moral agenda. They seized control of the courts in order to enact through judicial fiat what they continually failed to accomplish or dared not try to do through legislation. The Supreme Court is now an engine of social revolution in the United States—a reality that clearly dated in the public mind to a series of cases that culminated in the Roe v. Wade decision in 1973. Similarly, the Obergefell case of 2015 was another landmark judicial overreach in America, which, in defiance of state jurisdiction regarding marriage, legalized same-sex marriage across the entire union.

The progressives, however, now view their entire moral agenda at risk with the news that came from the White House this weekend when President Trump nominated Judge Barrett to the nation’s highest court. This nomination jeopardizes their moral revolution. Why would that be?

Judge Amy Coney Barrett currently serves on the U.S. Seventh Circuit Court of appeals. Prior to that, she taught for many years at the University of Notre Dame Law School, her alma mater. She is a native of Louisiana and has long been known as a conservative Roman Catholic and conservative jurist. She also clerked for the late Supreme Court Justice Antonin Scalia—a justice whose strict textualism Barrett models. Indeed, Scalia deployed the legal philosophy of originalism, meaning that he interpreted the Constitution as the Constitution; every word, every phrase is to be read and interpreted by the words and their original intent.

President Trump called his new nominee, “One of our nation’s most brilliant and gifted legal minds.” He continued: “She is a woman of unparalleled achievement, towering intellect, sterling credentials, and unyielding loyalty to the Constitution.” Those words were chosen carefully—Judge Barrett, if confirmed, will serve as a justice who is committed not to a regime of rights nowhere found in our nation’s governing documents, but only those rights explicitly enumerated in the Constitution. Those kinds of words would not have been used if this were a Democratic president announcing his or her nominee to the Supreme Court.

Judge Barrett’s nomination came as little surprise. She was a front-runner for the Supreme Court seat now held by Justice Brett Kavanaugh. Thus, she has already been vetted and thoroughly investigated.

During her acceptance speech, Judge Barrett stated, “If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you. I would discharge the judicial oath, which requires me to administer justice without respect to persons, do equal right to the poor and the rich, and faithfully and impartially discharge my duties under the United States Constitution.” She also made clear her admiration of Justice Ruth Bader Ginsburg, recognizing her as a trailblazer.

Justice Ginsburg and Judge Barrett, however, are light years apart when it comes to their judicial hermeneutics—hence the consternation of the left who are absolutely livid that a seat formerly held by a progressivist icon like Ruth Bader Ginsburg could now be held by a conservative jurist and strict originalist.

Democrats, however, find themselves in a particularly difficult predicament. For starters, Amy Coney Barrett is fundamentally and unquestionably qualified. Secondly, Democrats must now navigate the optics of their party opposing a woman being appointed to the Supreme Court just weeks before the 2020 Presidential Election. Notwithstanding these realities, Democrats will oppose her with every political weapon available in their arsenal. Some Democratic Senators have already stated that they will refuse to meet with Judge Barrett before the confirmation hearing begins; and, activists from the left wing of the Democratic Party are suggesting that it would be treasonous for Democratic Senators to even participate in the hearings.

The situation is only becoming more interesting, minute by minute.

The responses to Barrett’s nomination are crucial in understanding the worldviews at work in our current political moment. Across the board, every major newspaper and media outlet has reported that this nomination is seismic in its significance. By most calculations, there is currently a 5 – 4 split on the Supreme Court, with conservatives holding a one seat majority. That majority, however, includes Chief Justice John G. Roberts, who has become more of a swing vote in recent decisions. That being said, the appointment of Judge Barrett would give conservatives a 6 – 3 majority, making the Supreme Court decidedly conservative in its legal philosophy.

That point was made in an opinion piece published by The Washington Post by David Cole. The headline of the article read, “This is The Supreme Court’s Tipping Point.” Cole serves as the national legal director of the ACLU and is also a professor at Georgetown University’s Law Center. He indicated that, over the last decade, many strategic cases were decided—cases that came down to a 5 – 4 split. In some cases, conservatives were elated while in other cases, liberals edged out decisive progressive victories, including the decision handed down in Obergefell v. Hodges, where five justices unilaterally created a constitutional right to a same-sex marriage. A 6 – 3 majority, as Cole argues, is a massive tipping point for the Supreme Court and could drastically alter Constitutional history for decades.

Ruth Marcus, a liberal columnist for The Washington Post, also authored an article, calling this nomination a potential bombshell for the Unites States Supreme Court. In particular, Marcus pinpoints Judge Barrett’s view of stare decisis, which is Latin for, “Let the decision stand.” In other words, stare decisis represents the power of legal precedent.

During Barrett’s 2017 confirmation hearing for the 7th Circuit, she was asked over and over again about whether or not she respected precedent, especially the precedent of Roe v. Wade. What’s interesting is that she answered affirmatively then, but she did so as a nominee for an appellate court judge. A seat on the Supreme Court, however, is an entirely different matter—it is those nine justices that get to decide what precedent represents a more accurate reading of the Constitution.

Indeed, Justice Antonin Scalia bound his interpretations to the Constitution—nothing, not even precedent, could supersede the authority of the United States Constitution. If he believed prior decisions wrongly interpreted the Constitution, then those cases needed to be overturned. That is a similar legal philosophy exuded by Justice Clarence Thomas and Justice Samuel Alito. That kind of legal theory, moreover, is certainly the philosophy of Amy Coney Barrett. In 2013, she penned a journal article where she argued that the Constitution leaves no room for anything other than Constitution to decide what is or isn’t legal and Constitutional. Hence the fear of the left if she is confirmed. Her addition to the Supreme Court, therefore, would be enormously consequential.

Conservative Christians need to understand that this nomination is a game changer, especially as her nomination comes under the shadow of the 2020 election. This confirmation fight will be unlike any other in the history of the United States.

To be clear, conservative Christians have much to be encouraged by in the nomination of Judge Barrett to the nation’s highest court. Issues like the sanctity of human life, religious freedom, and the entire project of American ordered liberty are more and more decided before a panel of nine justices—the stakes could not be greater.

But stay tuned. The battle that is about to ensue in the United States Senate will be epic, and we will see, clearly before our eyes, the clash of worldviews in American politics.

This is a time of enormous consequence—of that, there can be no doubt.

R. Albert Mohler, Jr.

I am always glad to hear from readers. Write me using the contact form. Follow regular updates on Twitter at @albertmohler.

Subscribe via email for daily Briefings and more (unsubscribe at any time).