President Trump’s latest appointment to the U.S. Supreme Court.
In her nomination acceptance remarks, Judge Barrett proudly informed the nation that she clerked 20 years for the late Supreme Court Associate Justice Antonin Scalia. She added that “his judicial philosophy is mine too.”
That’s peculiar, to say the least.
Justice Scalia was a staunch “constitutional originalist”—one of those judges like Clarence Thomas who believe that all laws, both state and federal (even those upheld by lower courts), should be interpreted with the same legal mindset as the Framers who wrote and ultimately ratified the Constitution.
For example, the Sixth Amendment right to counsel as intended in 1789 provided only that a male individual (who at the time had to be a white landowner) could have an attorney represent him at a criminal trial if he could afford to retain one.
Judicial originalists, like Justices Scalia or Thomas, do not believe that the 1789 Sixth Amendment guaranteed a poor man had the right to counsel if he could not afford to hire one.
Nor do they believe that a right to counsel for poor people was created by the due process/equal protection of the 1868 Fourteenth Amendment.
Justice Scalia was particularly contemptuous of the Fourteenth Amendment when it came to women.
For example, he did not believe the equal protection clause of the amendment protected women from government-sponsored sex discrimination; or gave women a vested right not to be excluded from jury duty solely on the basis of sex; or denied States the right to fund male-only educational schools that deprived women equal opportunities.
This is what Justice Scalia essentially felt about the equal protection provisions of the 14th Amendment expressed—as in his often convoluted, egotistical fashion—in a dissenting opinion in which the Supreme Court recognized right to same-sex marriage:
“ … if … I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”
So, for the record, Judge Barrett draws her judicial wisdom from a jurist who believed the government an discriminate against a woman anytime it feels like it, that prosecutors can keep women off juries simply because they are women, and that women cannot attend male-only schools where the dudes enjoy extraordinary opportunities.
Let’s take it one step further.
Judge Barrett’s constitutional mentor also did not believe that the Eighth Amendment prohibition against cruel and unusual punishments could ever be applied to today’s government-sponsored punishments for women because the white-male only Framers of the Constitution had no problem with women being whipped who gave birth to illegitimate children; women being forced to wear a capital A on their clothing for committing adultery or a capital B branded on their forehead if they stole something; women having their ears cut off or placed in a pillory as examples to others against committing certain crimes; or black women being held in human slavery after their husbands and children were ripped from their arms and sold on the open market and then being compelled to serve the prurient interests of their masters upon demand.
That’s the “judicial philosophy” Justice Scalia passed on to Judge Barrett—the devout Catholic and mother of seven children.
We shall see how she applies these originalist views in today’s constitutional decision-making.