Mene, Mene, Tekel, Uparshin

In September 2021, about a year after she joined the Supreme Court and six months before she cast the deciding vote to overturn Roe v. Wade, Justice Amy Coney Barrett attempted to assure anxious members of the public that the alignment between this seemingly inevitable result and the policy platform of the Republican Party was merely a coincidence.

“My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks,” she told an audience at the University of Louisville. (An ambitious argument to make, given that Barrett was speaking at the McConnell Center, named for the Republican Senate Majority Leader who rammed through her confirmation just days before President Donald Trump lost the 2020 election, and who literally introduced Barrett prior to her remarks.) Barrett went on to complain about “hot takes on Twitter” that make Supreme Court decisions “seem results-oriented,” and she distinguished between the “judicial philosophies” that purportedly guide the Court’s work, and “political” considerations that ostensibly have nothing to do with it.

“Sometimes, I don’t like the results of my decisions,” Barrett said. “But it’s not my job to decide cases based on the outcome I want.”

Now, Barrett has written an entire book about the subject: Listening to the Law, which publishing industry sources described to Politico in 2021 as—I swear this is real—an exposition on her belief that “judges are not supposed to bring their personal feelings into how they rule.” As a Supreme Court justice, Barrett’s salary is around $300,000. For Listening to the Law, her publisher reportedly paid her a $2 million advance.

Let me start with that book title. It’s a cute metaphor, but a misbegotten one. The problem is, the law doesn’t speak. You can’t listen to it. You can only read it, and that’s an act of interpretation. So is listening, for that matter. How do I know the music I’m listening to is the same music I hear?  My memories, my experiences, my knowledge, all affect the act of listening. Am I listening? Does it move me the way it did before? Is it new, and I have to decide what I think?

All acts of interpretation; and inescapably so.

This is the problem I have with the “Scalia” school of jurisprudence. Scalia called it “originalism,” but you don’t need to be a philosopher or a student of jurisprudence to pick apart the problems with it. Even an English major can spot the flaws.

Literary criticism, the sort of bastard step-child of philosophy, once professed an “objective” stance toward literary criticism. Kierkegaard put a hole on “objectivity” (who has an objective view of their own existence? And what is more important to an individual than their own existence?) that eventually led “Modernism” (as action in literary criticism) to discard it as a fiction.

The problem with lawyers is that too few of them study literary criticism or philosophy. Being lawyers, they (some, to be fair) think they know all they need to know. Ignorance is never replaced by specialized knowledge. And being unable to think critically about philosophy (any more than one ignorant of science can think critically about quantum mechanics), they think they know all they need to know. So you get stupid statements like: “judges are not supposed to bring their personal feelings into how they rule.” 

Lawyers don’t generally even study jurisprudence. Legal realism recognizes that judges can’t ignore their personal feelings, that they are lying to themselves to say they do. Scalia’s dodge was to say he could divine the “original intent” of legislation or constitutional provisions, and that made his judicial opinions “objective” and sound. But again, literary criticism abandoned trying to determine authorial intent when it abandoned the fiction of objectivity. Authorial intent is always interpreted through the subjective lens of the critic. Literary criticism finally accepted that the as author writes the work, and the reader interprets it, and that interpretation is the one that can be criticized, but cannot be “objectively” disproven. One can only make stronger, or weaker, arguments. If that leaves you feeling like you are wandering a post-apocalyptic hellscape where nothing has meaning and everything is subject to endless argument, welcome to post modernism. 

(It’s actually not that bad. There are backstops, like the text itself; or, in law, the statutes and constitution. Precedent and stare decisis should set boundaries, too, but the lasting legacy of Scalia is the Roberts “We’re the Supreme Court, bitches” Court and School of Jurisprudence. Which is not jurisprudential at all. But that’s the problem, isn’t it?)

And Justice Barrett is not deciding cases based on the outcome she wants. She’s deciding them based on the jurisprudence she wants, precedent and stare decisis be damned. I’d have hesitated on that conclusion but for over 70% of emergency appeals decided in favor of the Trump Administration on the shadow docket (i.e., without explanation, even when there is a blistering dissent), in the past 7 months alone. Which is remarkable, considering the Court’s been in recess for over two months, now. A lot of cases the Sinister Six can’t take up, but can’t leave alone; and can’t write opinions on, but can chide lower courts for not reading the handwriting on the wall Which, by the way, had to be interpreted, too.  Nobody could just “listen” to it.

Well, now I feel like I gave Justice Barrett too much credit as an acolyte if Scalia. Or as a non-ideological doofus at all. At least if this is accurate:

Whew -- I was reading about Amy Coney Barrett's new book yesterday, in which she says Roe is not settled law because it did not reflect the will of the people, and FUMING about how brazen the lying can be.

CNN confirms:

In her book, Barrett dismisses the view of the three liberal Dobbs dissenters, who began their opinion by declaring – and citing Ginsburg – that for half a century the court’s abortion-rights precedent “protected the liberty and equality of women” and guaranteed “government could not control a woman’s body or the course of a woman’s life … .”

Barrett writes that the “complicated moral debate” about abortion distinguishes it from other rights more traditionally recognized as fundamental that enjoy broad public support, including “the rights to marry, have sex, procreate, use contraception.”

Not a jurisprudential concept I’ve ever heard of; well, outside the 19th century, anyway. Pretty clear ideological one, though. The very thing judges are supposed to leave at home, even on the high court.