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Of course, support for Barrett will bring some changes. But this so-called conservative court has been making many decisions in favor of liberalism, and the addition of Barrett will not bring dramatic changes. We will explain why this happens below.
For many years, the claim that the Supreme Court has a conservative 5-4 majority has been everywhere. Not only the media, but also party members from both parties are repeating this statement endlessly. Enter the word “conservative Supreme Court” into a Google search and the click-through rate exceeded 75 million. This is why so many people now predict that Barrett’s onboarding will produce a “conservative 6-3 majority” (over 8 million clicks).
However, the fact is that at the end of each year’s court period, commentators found that many of the court’s rulings in the previous year were skewed toward liberalism and expressed surprise. If the court has made so many liberal judgments, then it may not be “conservative” after all, but this is not a simple inference.
Let’s start from the beginning.
Different magistrates use different methods when interpreting the constitution. One mode of interpretation is called originalism. Fundamentalists apply the meaning of the constitution to those who agree with the constitution. If the judge is interpreting the constitutional amendment, he will apply its meaning to those who approve the constitution.
Fundamentalism is controversial now, but it shouldn’t be. For centuries, it has been the way that judges and lawyers often interpret legal documents. The founders of the United States wanted to interpret the constitution according to the rules of fundamentalism. Until the 1940s, the Supreme Court used to interpret documents in this way.
Even today, all judges have more or less embraced fundamentalism. But only one person, Judge Clarence Thomas (Clarence Thomas), is a complete fundamentalist. Maybe Barrett is too. But now, no one, including herself, knows.
Another way to interpret the Constitution is to follow the rulings of previous cases: the guide of the precedents. Chief Justice John Roberts, Justice Samuel Alito, Brett Kavanaugh, and Neil Gorsuch refer to the original intent of the Constitution. But they also attach great importance to precedents.
When they are only restricted by prior cases rather than authorized written documents, such as bylaws and constitutions, the usual way for judges to make decisions is to follow precedents. But when they explained the formal constitution, things got more complicated.
For example, suppose a judge is trying to clarify the meaning of constitutional terms such as “freedom of the press.” There has been an early verdict on this point, but the judge thinks he may be wrong. Should the judge follow it? If the above sentence is assumed to be wrong, should the judge follow it? What if the assumption is almost certainly wrong? What if only a few people trust previous bugs? What if many people rely on past judgments? What if it was just a precedent a few years ago? What if the case has become part of the law for many years? What if the situation changes?
Each judge will weigh these factors differently.
In a 2018 case (in PDF format), Alito said that if Congress wants it, it can ban sports gambling across the country. It followed liberal precedents, which gave Congress almost complete control of the country’s economy. But according to the original intent of the Constitution, sports gambling is generally regulated by the state government rather than the federal government. So it is not surprising that the fundamentalist Thomas opposed Alito’s argument.
Fundamentalists and judges who prioritize precedents are viewed by many commentators as conservative. They ignore that both methods will produce both liberalism and conservatism.
For example, in a 2005 case, Thomas (opposing opinion) concluded that states can still legalize medical marijuana, despite being against federal law. By taking the fundamentalist approach, he came to a liberal conclusion.
The preceding law is more likely to draw liberal conclusions. This is because many of the court’s key constitutional precedents were determined by the liberal majority in the 20th century.
In the sports betting case mentioned above, Alito (although he is often described as a “conservative”) followed the liberal precedent. A judge who insists on following liberal precedents will naturally produce many liberal rulings.
This shows that the media statement is also incorrect. There is no “conservative group” in court. Fundamentalism and precedent often produce liberal results, and the so-called (conservative) group judges also apply originalism and precedent in different ways.
Therefore, I was not surprised when the recent investigation of the royal court verdict revealed that there were no “conservative groups”. Roberts, Thomas, Alito, Kavanaugh, and Gosuh often disagree. We are all really a group.
On the other hand, the same study found that liberal judges formed a liberal activist group. Its members often vote together to promote liberal political goals. They often use whatever method leads to these purposes to explain and often follow their own personal methods. Justice Stephen Breyer (to give just one example) sometimes balances factors not listed in the constitution to achieve basic goals not listed in the constitution.
But none of today’s judges use this kind of reasoning to promote conservative ideals. There are currently no conservative activists in court.
However, the following is the true composition of the court (apart from Barrett, who has no record of the Supreme Court).
• Judges who consistently adhere to fundamentalism: 1
• Judges who favor the use of various combinations of fundamentalism and precedent: 4
• Liberal activists: 3
• Conservative activists: no
There have also been some conservative activists in the courts, who at the beginning of the 20th century sometimes even made up the majority. His behavior is similar to that of modern liberal colleagues. For example, they abused the due process clauses of the Constitution to create imaginary economic rights, just as radical liberals today abuse these clauses to create imaginary social rights.
However, the last conservative justice activist retired 80 years ago.
In the past half century, successful Republican presidential candidates have pledged to appoint fundamentalist judges. After so long, they have only produced one consistent fundamentalist: Thomas (even the late Justice Antonin Scalia) sometimes applies other methods; for example, his opinion in the case of medical marijuana is inconsistent with Thomas). Assuming Barrett is shown to be a fundamentalist, the combined number of these two men is much less than the rest.
One lesson learned from all this is that even if federal politicians are elected, they generally cannot carry out lasting reforms that conflict with the power of the “swamp.” The force against them is too great.
Therefore, as a citizen seeking reform, one should pay less attention to the Supreme Court and devote more energy to persuading the states to force a meeting to propose amendments to the constitution. But this is another issue.
The original text Even with Justice Barrett, we don’t really have a conservative Supreme Court was published in the “Epoch Times” in English.
About the Author:
Robert G. Natelson, former professor of constitutional science, is an independent research institute based in Denver (Independence Institute) Senior researcher of constitutional law and senior consultant of the “Convention of States” movement. His research articles on the importance of the constitution have been repeatedly cited by Supreme Court judges and parties.He is “Original Constitution: what is really said and its meaning”（The original Constitution: what it really said and meant） 的 作者。
The opinions expressed in this article represent the views of the author only and do not necessarily reflect the views of The Epoch Times.
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