Max Stearns
After some early volleys that made the day's exercises seem vacuous, I declared on Facebook I would not spend the day watching repeated assertions by Republican Senators that judges apply but do not make law, which they know to be false, or ongoing questions by Democratic Senators that with near certainty they knew would elicit recitations of the so-called Ginsburg rule. But in the end I changed my mind and watched most of the day's confirmation hearings. I came away away with some impressions about Amy Coney Barrett that, to be honest, somewhat surprised me. So I thought I would share them here.
Based strictly on today's performance, I did not find Judge Barrett to be the singularly brilliant legal mind that her advocates have continuously claimed her to be. I am not saying she's not extremely smart. I am sure she is. But based strictly on what I observed, she did not strike me as a rare brilliant legal mind. I say this for two reasons, each related to her discussion of a specific legal doctrine or case.
The first is standing. Her discussion of what standing is about was at best anodyne and at worst surprisingly incomplete. She focused on a particular case, Spokeo v Robins, but did so in a manner that revealed a failure to appreciate a foundational difference--one that motivated much of Justice Scalia's standing jurisprudence--having to do with the distinction between constitutional and statutory bases for standing and the limits that Article III places on the latter. (I've written on Spokeo here). The context of the discussion was general, yet her remarks on the doctrine not only failed to make this essential point about it; they also chose a truly strange case to focus on within the standing canon. Overall her answer wasn't nuanced, and were it to appear, say, on a final exam, it would have earned a middling grade for that part of the essay.
The far more significant discussion for me involved the upcoming Supreme Court case, California v. Texas, about which I gave a talk that I posted on this blog, with an embedded link to the full Maryland Carey Law Supreme Court Preview webinar. Judge Barrett made plain that for her the case turns on severability analysis. And yet, as I explained in those remarks, that is the third and final of three issues in the case, the first two of which involve, respectively, standing and the substantive underlying question whether reducing the shared responsibility payment to zero disallows continued reliance on the tax clause as a basis upon which to sustain the individual mandate.
Here's what surprised me. Although it is true that she critiqued Chief Justice Roberts's tax analysis in her Constitutional Commentary article as a non-obvious reading (on this she is right), she repeatedly also claimed that there is a profound difference between the task of scholarly critique on one side and actual judicial decision making on the other (likewise, on this she is right). But both as a matter of legal reasoning and even political judgment, it seems to me that she undercut herself by failing to take her own advice on this critical question, one that certainly could not have come as a surprise.
A sharper nominee could easily have avoided the trap she created for herself. Such a nominee could have said that although the lower courts found standing, the Supreme Court might not, which would end the challenge. And she could have added that given the nature of the pending case, although it seems unlikely, it is at least conceivable that the commerce clause question that the NFIB v. Sebelius majority rejected might resurface as an independent basis for sustaining the individual mandate. She could further have said that her academic writings should not be taken as a final word on her own views of the tax clause implications of the present (zero shared responsibility payment) or past (with an actual payment) versions of the individual mandate. She could have added that under the Ginsburg rule, which she repeatedly invoked throughout the day, she was not going to address those questions, and as such, the severability question is at this point purely hypothetical. Depending on how those other questions are resolved, it may or may not come up, but either way, she cannot address it.
Instead, by homing in on the severabiilty question, she tipped her hand on the earlier questions--basically conceding standing and that on the merits she regards the individual mandate as unconstitutional. This strengthens in a considerable way the legitimacy, despite the Ginsburg rule, of Senator Klobuchar's questioning Barrett directly about the case and about where the tracks of Barrett's writings lead Klobuchar concerning the fate of the ACA with Barrett on the Court. If Judge Barrett is conceding standing and the unconstitutionality of the mandate, it is harder for her then to defend not answering what implications that all holds for the ACA's ultimate fate. Having answered parts of the pending case, even implicitly, it is harder to justify invocation of the Ginsburg rule for the remaining part.
There was, finally, an observation about the judge's repeated reference to sexual preference rather than orientation, a term that members of the LGBTQ community rightly find offensive because it conveys or implies that sexuality is a choice. It is possible that given the circles in which the judge travels, she was simply not aware of this nuance. That alone might be a problem, but if so, a different one than the possibility others have raised about covert signaling to those wishing to restrict rights of members of that community.
I want to be clear. I have no doubt that Judge Barrett is extremely smart, both as a legal academic and as a judge. But I keep hearing that she is in a league of her own intellectually. This still might be true. This could have been a bad day for her. We all have them. And these are merely one day's impressions.
I welcome your comments.