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ACB is Not a Policy Maker - Nor Should She Be

by Maddy Hoffman


Since Amy Coney Barrett’s confirmation on October 26th, 2020, I have heard many express fear and anxiety over her new position as Supreme Court justice.


“She’s against the Affordable Care Act.”


“She’s pro-life, she’s against Roe v. Wade.”


“She’s super Catholic, and there should be a separation of church and state in America.”


All those things may be true. Of course, the Supreme Court is a system created by humans, run by humans, and that means every justice who has ever sat on the Supreme Court has had bias, personal political preferences, and religious beliefs. Amy Coney Barrett is no exception. But the national fixation on Barrett's own political leanings makes it seem like she will be ruling on cases based on her own political inclinations, using the law as a means to push her own preferred policy outcomes. This narrative ignores the fact that the role of a justice is to put biases, preferences, and beliefs aside - to the extent humans are able to - and interpret the law as it is written. Fearing Justice Barrett will put her own agenda over the integrity of her position is to question her very competency as a judge, and there is plenty of evidence from people across the political aisle that she is far from incompetent; the American Bar Association (the largest nonpartisan organization of lawyers in the world) even rated Barrett as “well qualified,” the highest ranking possible, citing her “integrity, professional competence and judicial temperament.” The truth is, while we may be able to speculate about how Barrett will rule on specific cases given her past rulings, we cannot use speculations about her personal beliefs as evidence for how she will conduct herself as a justice. If Justice Barrett overturns the Affordable Care Act or Roe v. Wade, it will not be because she disagrees with them personally; it will be because she is doing her job of interpreting law and does not find them to be constitutionally sound.


This does not mean one cannot be upset about the potential outcomes of her rulings; I, for one, do hope Roe v. Wade is not overturned. However, even if it was overturned, I would have to acknowledge that Supreme Court justices like Barrett are not policy makers, but judges who interpret law without regard as to how their rulings will impact society at large. This is a good thing - if judges only engaged the law when they believed it would produce "desirable" outcomes and ignored it when it did not, then there would be no point in having law at all. This is why Supreme Court justices have lifelong terms, as because they do not have to worry about being elected or fired, they are uniquely insulated from political and public pressure, which allows them to interpret law exactly as they believe it to be written. While our justice system's disregard for public opinion may lead to some unpopular outcomes, it also ensures the law’s integrity as a neutral, indiscriminate force, and prevents it from becoming a political weapon. If we want to see specific policy outcomes, we are going to have to elect actual policy makers who will enact the change we seek in a way that will hold up to legal scrutiny.


So yes, Amy Coney Barrett does have personal policy preferences - indeed, all humans do. But there is no evidence she will use them to inform her rulings. You can disagree with her interpretation of the law, you can be upset about the outcomes of her rulings, and you can take issue with Trump’s decision to nominate a justice so close to election day (although I would argue that so long as he is president he should be able to perform presidential duties, which include nominating Supreme Court justices). However, implying Barrett has more of a political agenda than any other Supreme Court Justice in history is misleading and unfounded.


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Maddy Hoffman is a student at the College of William & Mary, and the Founder of Counterviews.org.

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