Amy Barrett
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Rebutting a key line of attack against Barrett

Andrew McCarthy of National Review Online tackles a core Democratic Party criticism of Judge Amy Coney Barrett.

Democrats are continuing their disingenuous strategy of framing Judge Amy Coney Barrett as President Trump’s stealth weapon, being rushed onto the Supreme Court by Republicans in order to kill Obamacare in a case the Court is scheduled to hear arguments in on November 10. … In this vein, Senator Chris Coons (D., Del.) posits that Barrett has publicly criticized the Affordable Care Act.

This is false.

As a judge, Barrett has not ruled on Obamacare. As a scholar, she has taken the firm position that a judge’s important but modest role is to say what the law is, not to formulate public policy. The best prediction of her position on legislation, therefore, is that its policy direction is for Congress to decide; the judge’s narrow role is to ensure that enacted law complies with constitutional requirements, regardless of its political or ideological bent. …

Senator Coons is apparently referring to an article – actually, a book review, “Countering the Majoritarian Difficulty” – that Judge Barrett, as a Notre Dame Law School professor, wrote for a scholarly publication of the University of Minnesota Law School in 2017. …

… In the review, Barrett did not address the merits or demerits of Affordable Care Act as policy. Her discussion centered on the dispositive legal issue in the Supreme Court’s 2012 Obamacare case, NFIB v. Sebelius. …

… The issue Barrett addressed was not Obamacare policy. It was a matter of statutory interpretation: the collision between textualism and judicial restraint. …

… For Barrett, the pressing question was whether legitimacy calls for a judge always to interpret the law with fidelity to the original public meaning of the text. If so, the result would be to hold the ACA unconstitutional; contrary to partisan carping, that actually would have been an exercise in judicial restraint because it would not allow a court to rewrite the law in order to save it.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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