Barrett and Judicial ‘Consequentialism’

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Barrett and Judicial ‘Consequentialism’

Published: Thursday, October 8th, 2020 @ 2:44 pm
By: John Locke Foundation ( More Entries )

Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Mitch Kokai.

Isaac Schorr writes at National Review Online about the latest Supreme Court nominee's impact on a major judicial debate.

While Republicans generally appoint jurists who interpret the Constitution according to the plain or original public meaning of its text, Democrats favor appointees who believe in a "living" or "evolving" Constitution. That is, one that can allow or prohibit whatever they want it to allow or prohibit. This method of interpretation is the natural result of judicial consequentialism on the left, or the belief that the law and Constitution should be interpreted not as it is, but as the Democrats believe it should read to fit their vision of a better society.

Nathan J. Robinson summed up this view of the Constitution best for Current Affairs, writing that:

"One question alone matters to me: what effects would her [Barrett's] presence of the Supreme Court have? In other words: how would she rule on issues that matter? Who would be helped or hurt by these rulings? The most important criteria in evaluating a potential justice are their stated values and their prior record, because these are the best evidence we have with which to speculate about what they would do if placed on the nation's highest court. ..."

... No one wants to cause "significant needless harm to innocent people" or "make the country a more unjust place." But it is Congress's job to write laws — within the boundaries set by the Constitution — that prevent harm from befalling American citizens and make the country more just. It is the Supreme Court's job only to make sure that those laws fall within those boundaries. If the nine justices on the Court were to all adopt Robinson's view of the judiciary, we may as well not only abolish the Senate but the House too, and formalize the Court's role as a super legislature.

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