The Volokh Conspiracy
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On Monday evening around 9:00 p.m., Justice Thomas administered the constitutional oath to Justice Amy Coney Barrett. The video begins at the 10:30 mark.
After her oath, Justice Barrett offered remarks, which I have done my best to transcribe:
Thank you all for being here tonight, and thank you, President Trump, for selecting me to serve as an Associate Justice of the United States Supreme Court. It is a privilege to be asked to serve my country in this office, and I stand here tonight truly honored and humbled.
Thanks also to the Senate for giving its consent to my appointment. I am grateful for the confidence you have expressed in me, and I pledge to you and to the American people that I will discharge my duties to the very best of my ability. This was a rigorous confirmation progress, and I thank all of you, especially Leader McConnell and Chairman Graham, for helping me to navigate it.
My heartfelt thanks go to the members of the White House staff and Department of Justice, who worked tirelessly to support me through this process. Your stamina is remarkable, and I have been the beneficiary of it. Jessie and I are also so grateful to the many people who have supported our family over these last several weeks. Through ways both tangible and intangible, you have made this day possible. Jesse and I have been truly awestruck by your generosity.
I have spent a good amount of time over the last month in the Senate, both in meetings with individual senators and in days of hearings before the Senate Judiciary Committee. The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is the role of policy preferences. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them.
Federal judges don't stand for elections. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty: the rule of law must always control.
My fellow Americans, even though we judges don't face elections, we still work for you. It is your constitution that establishes the rule of law and the judicial independence is so central to it. The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences. I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it. Thank you.
She continues to impress me in ways that I frankly hadn't expected. There is a sincerity behind every word that really resonates. Four themes jumped out.
First, she repeated an important refrain: "It is a privilege to be asked to serve my country in this office, and I stand here tonight truly honored and humbled." During her hearing, Judge Barrett made this point quite eloquently. She sees her nomination as a duty to the country she deeply loves, and not as some sort of social-climbing, self-aggrandizing brass ring.
Second, you can tell that the confirmation process actually made an impact on her. No, not in the sense of the Thomas and Kavanaugh hearings, where the Justices were forever scarred by the process. Rather, she witnessed first hand how many of the Senators were concerned primarily, if not exclusively with policy outcomes. The overwhelming majority of questions asked ACB about her views different social issues, such as abortion, gay rights, etc. At each juncture, Judge Barrett refused to answer those questions. Critics thought she was evasive. But she truly did not think her own views would be relevant. During her remarks, Justice Barrett used this experience to highlight the dichotomy between senators and judges. Senators are duty-bound to follow their preferences. But "it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them."
Third, she made a simple, but profound point: "Federal judges don't stand for elections. Thus, they have no basis for claiming that their preferences reflect those of the people." I immediately thought of Justice Scalia's Obergefell dissent. He wrote:
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. . . . The strikingly unrepresentative character of the body voting on today's social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today's majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
ACB nailed the Scalia dissent, without the brashness. And, for what its worth we now have a second Justice who "hails from the vast expanse in-between." Oddly enough, both of them are Hoosiers.
Barrett's modesty must be contrasted with Justice Kennedy's arrogance. He truly believed that he could discern what the people wanted, and read those preferences into the Fourteenth Amendment. For example, the joint opinion in Planned Parenthood v. Casey proclaimed: "Our obligation is to define the liberty of all, not to mandate our own moral code." The Court cannot "define the liberty of all" because it cannot possibly know what the "liberty of all" is. And if it tries to "define the liberty of all," it will simply mandate its "own moral code." Justice Barrett thoroughly rejected this model of judging in the span of a few sentences.
Third, Justice Barrett formally declared her independence from the very people she just thanked: President Trump and Leader McConnell. She said, "A judge declares independence not only from congress and the president, but also from the private belief that might otherwise move her." This imagery is important. I described Justices Gorsuch and Kavanaugh's opinions in Trump v. Vance in similar language: "the two Trump appointees formally declared their independence from him." But not really. They barely ruled against Trump, because they actually agreed with the dissent. But they had to signal their independence.
Fourth, Justice Barrett spoke lovingly of the Constitution. She said "I love the Constitution. Can someone print that on a T-Shirt: "I love the Constitution." We need to update the "dogma" merch.
Her full quote is even more profound. She said, "I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it." Here, she is alluding to Benjamin Franklin's famous quotation that it is a Republic if you can keep it. Justice Barrett will do her role to preserve the Republic.
No matter how many new seat are added to the Court, Justice Barrett will still loom large over the others. Her greatest contribution will be to enrich our constitutional culture. I mean that sincerely. She has the charisma and presence to elevate legal discourse to the next level. And I think she will inspire generations of conservative women to aspire to greatness, without eschewing their beliefs. With time, she may even be able be able to fill the titanic void left by Justice Scalia.
I can't wait till she gets started.