Democrats are continuing their disingenuous strategy of framing Judge Amy Coney Barrett as President Trump’s stealth weapon, being rushed onto the Supreme Court by Republicans in order to kill Obamacare in a case the Court is scheduled to hear arguments in on November 10 (see my earlier post). In this vein, Senator Chris Coons (D., Del.) posits that Barrett has publicly criticized the Affordable Care Act. 

This is false.

As a judge, Barrett has not ruled on Obamacare. As a scholar, she has taken the firm position that a judge’s important but modest role is to say what the law is, not to formulate public policy. The best prediction of her position on legislation, therefore, is that its policy direction is for Congress to decide; the judge’s narrow role is to ensure that enacted law complies with constitutional requirements, regardless of its political or ideological bent. That, for what it’s worth is why I’ve predicted (see the earlier post) that neither Judge Barrett nor any of the eight justices currently sitting on the Court (including its four conservatives, two appointed by President Trump) would vote to invalidate Obamacare.

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Senator Coons is apparently referring to an article – actually, a book review, “Countering the Majoritarian Difficulty” – that Judge Barrett, as a Notre Dame Law School professor, wrote for a scholarly publication of the University of Minnesota Law School in 2017. The article was not specifically about Obamacare. Instead, it arose out of a roundtable discussion in which several academics discussed Our Republican Constitution, an excellent, provocative book by Randy Barnett, a superb law professor at Georgetown.

In the review, Barrett did not address the merits or demerits of Affordable Care Act as policy. Her discussion centered on the dispositive legal issue in the Supreme Court’s 2012 Obamacare case, NFIB v. Sebelius. 

In a nutshell, Obamacare was enacted on the express premise that its mandate that individuals purchase insurance, which included a financial penalty for failure to do so, was a proper exercise of Congress’s power under the Constitution’s Commerce Clause. This was wrong. As a majority of the Court held, that Clause does not authorize Congress to force people to engage in commerce by buying a commodity. Nevertheless, Chief Justice John Roberts saved the statute by deeming the penalty to be, instead, a tax. The 5-4 majority (Roberts and the Court’s liberals, who numbered four at the time) sustained Congress’s power to impose a tax – notwithstanding that congressional Democrats and President Obama had insisted it was not a tax.

The issue Barrett addressed was not Obamacare policy. It was a matter of statutory interpretation: the collision between textualism and judicial restraint – somewhat ironic, in that textualism is generally thought of as a restraint against improper judicial legislating. 

For Barrett, the pressing question was whether legitimacy calls for a judge always to interpret the law with fidelity to the original public meaning of the text. If so, the result would be to hold the ACA unconstitutional; contrary to partisan carping, that actually would have been an exercise in judicial restraint because it would not allow a court to rewrite the law in order to save it. 

The alternative, chosen by Chief Judge Roberts, was to disregard the text and enforce what the majority understood to be Congress’s purpose. Ostensibly, that looks like restraint because the Court is not in the position of invalidating an act of Congress; but, in reality, it is an exercise in judicial legislation.

Judge Barrett is an originalist and a textualist in the mold of Justice Scalia, who dissented in the case. The upshot of her review is that, like Professor Barnett, she is skeptical of a concept of judicial restraint flowing from purposivism. For her, that would free judges to depart from the original public meaning of a statute’s text in order to save it by purporting to impose what they believe Congress wanted to accomplish. Barrett’s article, however, is about how laws should be construed; she expresses no view on what laws Congress should or should not enact.