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Tulane University

Is an ‘originalist’ judge good for the Supreme Court, American constitutional law?

29-Sep-2020 5:20 PM EDT, by Tulane University

On September 26, President Donald Trump nominated Amy Coney Barrett to the Supreme Court of the United States to fill the vacancy left by the recent death of Justice Ruth Bader Ginsburg.

If confirmed, Barrett, who has been on Trump’s shortlist for the Supreme Court, would be the youngest justice and give the high court a 6-3 conservative majority. A Catholic who is pro-Second Amendment, she is considered a solid social conservative and a critic of the Affordable Care Act, also known as Obamacare.

Stephen Griffin, a constitutional law professor in the Tulane University School of Law, is available to speak about the nomination of Amy Coney Barrett and how her “originalist’ philosophy as a judge may be a detriment to the Supreme Court and a real danger to the structure of American constitutional law.

 

According to Griffin:

“Barrett is an ‘originalist’ judge. The judicial philosophy of originalism has gradually become a very narrow approach to constitutional interpretation, which stresses looking for the ‘original meaning’ of the document. That meaning has to be constructed on the basis of a highly selective approach to history. The constructed nature of originalism, in effect, gives judges like Barrett permission to imagine that their preferred policy positions are ratified by the framers of the Constitution. That makes it a dangerous philosophy, one that could do real damage to the structure of American constitutional law.”

“Over the past few decades, Republicans have cared more about judicial appointments, including appointments to the Supreme Court, than Democrats. The nomination of Amy Coney Barrett is the culmination of that effort. But going ahead with the nomination so close to a closely contested presidential election poses real risks. There are no clear parallels in American history to the current situation. The Supreme Court itself as an institution could easily become the victim of a Democratic backlash if Barrett is confirmed.”

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