WASHINGTON (AP) — President Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, has made her judicial philosophy clear through opinions, speeches and other writings. She describes herself as an originalist in the mold of her mentor, Justice Antonin Scalia.
Here’s a look at the judicial philosophy of originalism, what Barrett says about it and the philosophy’s opposite:
Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes. Originalists argue that new legislation, rather than new interpretation of the Constitution, is the best way to bring about social change and safeguard minority rights. Originalists say relying on text doesn’t mean they can’t grapple with contemporary phenomena, such as the radio or Internet.
BARRETT ON ORIGINALISM
Asked Tuesday to explain originalism in English, rather than legalese, Barrett said the following: “So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
The judicial approach that is originalism’s opposite is sometimes referred to as the “living constitution,” “loose constructionism” or “modernism.” This judicial philosophy considers the Constitution to be a living document, able to encompass society’s changing, evolving values. Judges who approach decisions this way are sometimes called “activist judges” by critics.
Justice Ruth Bader Ginsburg, whom Barrett would replace, embraced the idea of a more elastic Constitution. While she and Barrett’s mentor, Justice Scalia, were friends, their judicial philosophies were opposite.
Speaking to groups, Ginsburg often approvingly cited the lines of an opera written about their friendship which at one point sets out an explanation of their differing philosophies in song. The Scalia character sings a “rage aria” that begins, “The justices are blind, how can they possibly spout this, the Constitution says absolutely nothing about this.”
Ginsburg liked to repeat the lines of her response: “Dear Justice Scalia, you are searching for bright-line solutions to problems that don’t have easy answers. But the great thing about our Constitution, is that like our society it can evolve.”