Editor’s Note: Jeffrey Toobin is chief legal analyst for CNN and the author of “The Nine” and “The Oath.” The opinions expressed in this commentary are his own. View more opinion at CNN.
Amy Coney Barrett, who was confirmed to the Supreme Court a year ago, gave a speech a few weeks ago in which she said the justices were not “partisan hacks.” Justice Barrett did this at the University of Louisville, at the 30th anniversary celebration of a center named in honor of Mitch McConnell, Republican minority leader in the US Senate.
A few months after Justice Neal Gorsuch was confirmed, in 2017, he delivered a similar message at the McConnell Center. A little over a year after Justice Brett Kavanaugh was confirmed in 2018, he traveled to Louisville to swear in a McConnell protégé as a federal judge.
The three Supreme Court justices – all appointees of the former President, Donald Trump – performed these acts of deference and gratitude to McConnell for very good reason. The former majority leader of the Senate engineered their confirmations despite incendiary political controversies.
McConnell jammed through Barrett’s nomination at lightning speed ahead of the 2020 presidential election; he did this after in 2016 stonewalling President Barack Obama’s nomination of Merrick Garland (now President Joe Biden’s attorney general) to the same vacancy so that a Republican president could fill the seat that went to Gorsuch.
And McConnell pushed through Kavanaugh’s confirmation despite a highly credible accusation of sexual assault against the nominee (which Kavanaugh denies). To be sure, the three justices owe as much or more to McConnell for their positions as they do to the president who nominated them.
It’s therefore all the more ironic, even outrageous, that – just weeks before the Supreme Court began a new term that promises to be profoundly consequential – Barrett could stand before McConnell in Louisville last month and pretend that the Supreme Court has nothing to do with politics. In this, Barrett was just repeating a fiction that justices on both the left and right have been peddling for years.
In a recent speech at Notre Dame, Clarence Thomas, the longest-tenured associate justice, said, “I think the media makes it sound as though you are just always going right to your personal preference. So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician.” In the words of Justice Stephen Breyer, the senior liberal on the court, he and his colleagues are not “nine junior varsity politicians.”
Even the justices themselves acknowledge that the Democratic and Republican appointees to the court disagree about many of the most controversial issues before them. But they have an innocent explanation for this situation. As Barrett put it in her speech, “judicial philosophies are not the same as political parties.” Really? If they are not the same, they are awfully close.
Barrett and the other conservatives on the court call themselves “Originalists,” which mean they believe the words of the Constitution should be interpreted as they were understood by the 18th-century authors and ratifiers of the document.
Liberal jurists, in contrast, believe in a “living Constitution,” meaning its words have to be understood in the context of the time in which we are living. The distinction may seem academic, but the implications are intensely political.
“Originalists” believe that the Constitution does not protect a woman’s right to choose abortion; that many campaign finance laws violate the First Amendment; and those states should have the right to apply the death penalty without interference from the federal courts. Liberals believe the opposite on these issues and scores of others as well.
It cannot then be a great surprise that “originalism” vs. “living” constitutionalism maps up with great precision against Republican vs. Democrat. And you know who knows this? The presidents of the United States who make the nominations to the court. Donald Trump said with admirable candor that he would appoint justices who will vote to overturn Roe v. Wade, the 1973 decision that guaranteed women the constitutional right to choose abortion.
Indeed, in a 2016 debate with Hillary Clinton, Trump said that overturning Roe “will happen automatically” if he had the chance to name justices. He did, and they will.
They may already have done so. In a brief, almost offhand ruling issued in the middle of the night on August 31, a five-justice majority allowed a Texas law that effectively bans abortion in the state to go into effect. The five originalists on the court voted not to block the law; the three liberals, plus Chief Justice John Roberts, a Republican who has not embraced originalism, dissented.
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When the court hears a full-fledged case this year from Mississippi about a similarly restrictive abortion law, they may simply apply the coup de grace to Roe, after they mortally wounded it this summer.
In the end, it doesn’t really matter if you call what the majority is doing “judicial philosophy” or “politics.” What matters is that the justices are doing what Donald Trump and Mitch McConnell put them on the court to do. A trip to Louisville is a small price to pay for that privilege.