We at Mountain States Legal Foundation could not be more pleased to celebrate the confirmation and swearing in of Justice Amy Coney Barrett. At Mountain States we spend our days before the courts of this country. Which is why we recently commented that our hope for a Justice Barrett, is not that the Court will make conservative policy, but that the Court will force policy making back into the legislatures, where it belongs.
In her acceptance speech, now-Justice Barrett said:
“The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is the role of policy preferences. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them. Federal judges don’t stand for election; thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty: the rule of law must always control.”
In doing so she echoed the Framers’ comments on the powers of the judiciary in their debates on the Constitution. John Dickinson argued that allowing the judiciary a role in policy making would create “an improper mixture of powers,” which would destroy the separation of powers system. In similar fashion, Elbridge Gerry claimed it would promote an “improper coalition between the Executive & Judiciary departments” that would create a powerless Congress and ultimately lead to tyranny. And Alexander Hamilton wrote in Federalist 78 that “’there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”
We have feared the courts’ union with the legislative branch and the destruction it is capable of wreaking within our country. We’ve seen the beginnings of that trend. Let us hope not that conservative policy will be issued from the Supreme Court, but rather that the Constitution and its rule of law will reign supreme again.