That’s Not Their Job: What Supreme Court Justices Can and Cannot Do

With the Death of Supreme Court Justice Ruth Bader Ginsburg, a new battle over her successor added an additional — and unwelcome — additional dimension to an already contentious election season. With the media and outspoken members of the political class (as well as your more opinionated Facebook friends) pushing the “liberal vs conservative justice” narrative, it has become yet another battleground in the American Culture Wars. But while you and your cousins argue over whether or not the nomination and likely confirmation of Amy Coney Barrett will suddenly jeopardize abortion rights or healthcare or whatever other hot button issue riles up your pals, the question is how and why that would or could occur.

The thing that many of the pearl clutchers are failing to acknowledge is that the Supreme Court does not create laws. At all. They simply rule on challenges to laws that have been written by the legislative bodies across the nation. For the justices to overturn any specific ruling or law, they would need a substantially good reason. For example, in order to overturn Roe v. Wade, there would need to be a specific law written that affects someone in a manner that they believe violates the established precedent. That person would then need to challenge the law, with the losing side appealing the case repeatedly at higher and higher courts across the land.

At the end of this process, the Supreme Court would still need to decide whether or not they even have sufficient jurisdiction to hear the case, as well as a justification for doing so. Only at that point would it even be possible to overturn the law, and it would be vanishingly unlikely for that to occur given the Court’s deference to precedent. The same can be said for Obergefell v. Hodges, the ruling that disallowed marriage discrimination for same sex couples, or even for the Affordable Care Act ruling in 2012 when Chief Justice John Roberts famously engaged in some fairly overt judicial activism in order to shove it through.

Ginsburg herself is often held up as a beacon of a person who fought for individual liberties, especially for women and certain minority groups. That isn’t necessarily the whole picture, however. What Ginsburg regularly did, as did her colleagues, was to evaluate the case before them on its merits as she saw fit and decide whether or not the law as written was constitutional, valid, and applied equally. Where Ginsburg gained her reputation for being a champion of the overlooked was her focus on ensuring the equal application of the law, regardless of gender, race, or any other category that could be inserted. What she did not do was to overstep her role — she did not write laws, nor did she endeavor to do so. The same can be said for all of the other justices currently serving on the court save for the possible exception of Roberts himself, who seems to relish the idea of using his role as the Chief Justice to be the referee of the referees, attempting to position himself as the new centrist, even at the expense of jurisprudence.

Beyond that, the idea that there are liberal or conservative justices is anathema to the very core of what the Supreme Court is and should be. It has been vanishingly rare for any of the justices to even opine about political issues. To be clear, they may come out and make statements that hint at their political leanings, such as when Samuel Alito and Clarence Thomas publicly stated that they wished to revisit Obergefell. Even still, they did so not from a standpoint of activism or wanting to write the laws, only going as far as saying that they have concerns about the potential for discrimination against religious organizations that has resulted from the ruling. Even still, they would need to await a case to make its way all the to the court, and even then it seems unlikely that the two of them could peel off more than one of their peers on the issue, with Elena Kagan, Sonia Sotomayor and Stephen Breyer being fairly overt with their beliefs that the ruling is a matter of equal protection, with Neil Gorsuch and Roberts also likely to defer on the matter.

That brings us back to Coney Barrett. Her record and credentials in jurisprudence are well within the mainstream of American thought, with a general deference to interpreting laws as they are written. She tends toward originalism — unsurprising since she comes from the Antonin Scalia school of thought having clerked for him — and her history indicates that she believes in a limited judiciary as a whole. Much of the opposition to her appointment from the left falls into one of three categories: Fear of her perceived political leanings, the hypocrisy of Republicans who declined to seat President Obama’s choice of Merrick Garland in 2016, and naked partisanship because she is being appointed by a Republican president — that the Republican president is Donald Trump only exacerbates the latter.

The first of these concerns is moot, as stated above, but the other two objections are also a bit self-serving. In fact, it was Democrat Senator Harry Reid in 2013 who eliminated the rule that judicial appointees needed to have 60 votes, reducing it to a simple majority as a means to shove President Obama’s choices through, subverting a rule that had been in place for nearly a century. Republicans were holding up Obama’s choices in retaliation for Democrats doing the same to President Bush during his term. It has become a game of tit-for-tat that the Democrats initiated in earnest, and the tat has blown up in their faces.

The Constitution is also quite clear on the issue; The president makes their choice, the Senate decides whether or not to seat the justice. There is no criteria for how or why they decide, so the Senate has a wide degree of leeway on the proceedings. They opted not to seat Garland, they opted to seat Gorsuch and Kavanagh, and they will likely seat Coney Barrett. Whether or not this leads to even more retaliation from the Democrats should Joe Biden win election remains to be seen, with many of his supporters openly calling for court-packing. Biden himself has gone on record in the past as opposing such measures, but the only consistent thing about Biden is how inconsistent he is. All of these options are just as legal and valid as the judiciary hearings — as galling as they may be — and well within the rights of the Senate.

The bottom line is that several of the justices on the court have had somewhat controversial in their hearings but proven to be capable adjudicators — as their records would have indicated. Indeed, all eight of the current justices have solid credentials and all of their rulings (again, save Roberts’ ruling on the ACA) have been well within the mainstream of legal thought in the United States. Coney Barrett’s record is no different — she seems likely to be among the most moderate members of the bench with her history, decidedly to the left of Thomas, Alito, and Kavanagh and to the right of Kagan, Breyer, and Sotomayor.