Judge Barrett will be a battered Constitution’s best friend.
Based on her record, Amy Coney Barrett is more likely to make decisions based on what the Constitution says, not what she wishes it said.
It is my fervent hope that some day, Americans will understand the difference between a democracy and a republic and finally understand why the United States is a republic. If I can’t have the whole country, those writing on Medium would be a good start.
Those who created the framework of the federal government believed there should be one branch that could be above politics and the whims of the populace. That's why all federal judges, not just those on the Supreme Court are appointed by the Executive Branch, confirmed by the Senate (remember, Senators were not directly elected by the voters until the ratification of the Seventeenth Amendment in 1913) and their appointments are for life.
This is also the reason for much of the opposition to calls for packing the court. The Constitution neither specifies a number or sets a limit on the numbers of justices on the bench but how big does it get before it is so hopelessly muddled that a consensus is impossible? Justices are appointed for life; they can’t be laid off or made redundant. The only way to trim the numbers would be to wait for members to either retire or die and then eliminate the seat. It could take generations to whittle an inflated court back down to a manageable size.
The flaws you see in Judge Barrett are the same flaws I saw in Justice Ginsberg and I had tremendous respect for Justice Ginsberg, who had a brilliant legal mind and served the American people well on the court. I strongly disagreed with some of her opinions; even disagreed with the legal reasoning behind some of them, but I respected them whether her opinions were in the majority or not.
By insulating the judiciary from the need to engage in partisan or electoral politics, judges are free to render opinions based on the facts of the case and the law. Many judges have taken positions based on their understanding of the law that disappointed those who nominated and confirmed them. This is a good thing and demonstrates the value of an independent judiciary.
What if Judge Barrett upholds Rowe v. Wade and also upholds Planned Parenthood v. Casey? That’s the situation we’re in today, with states prohibited from outlawing abortion but free to build as many obstacles as they wish between and woman and being able to obtain one. Women are still going to have to travel to states that are more welcoming and that is going to be a burden on many.
What if she joins others in overturning Roe v. Wade because the federal government never had the authority to be involved with regulating women’s health and reproduction choices in the first place? By any definition of the Tenth Amendment, such regulation is the province of the 50 sovereign states.
The only improvement over the present is that states would still be free to allow abortions.
The Constitution is the Constitution and includes instructions for changing it.
It has been changed, even fundamentally changed, by 27 Amendments, the most recent ratified in 1992.
If they wish, the people can drive change by demanding their state join with other states to call a constitutional convention. If 34 states agree on the need for a convention, the convention must be held, with or without the support of Congress. At least, that’s the current thinking; it hasn’t happened yet.
If 38 states vote to ratify the amendments proposed by the convention, the amendment is incorporated into the Constitution with the same power and authority of any other part of the Constitution.
The downside is that it takes just 17 states to prevent a constitutional convention and 13 states to kill an amendment dead as a doornail.
It may be challenging but that's the point. The Constitution defines the federal government, its powers and the limits on those powers: it’s not supposed to be easy to alter. If it seems like too much trouble and takes too long, you just don’t want change badly enough.