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When It Comes To Judicial Philosophy, Supreme Court Nominee Is An Originalist

STEVE INSKEEP, HOST:

In her confirmation hearings, Supreme Court nominee Amy Coney Barrett, like many nominees, has avoided direct answers to many questions. Can the president pardon himself? Does human activity cause climate change? Barrett declined to say because she said they could come before the court. She did say something of her judicial philosophy as what's called an originalist.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY CONEY BARRETT: That means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it.

INSKEEP: Two constitutional experts are here to help us understand what that means. Jonathan Turley is a law professor at George Washington University. Welcome back to the program.

JONATHAN TURLEY: Thank you very much.

INSKEEP: And Elizabeth Wydra is president of the Constitutional Accountability Center. Welcome to you, and good morning.

ELIZABETH WYDRA: Good morning. Thanks for having me.

INSKEEP: Jonathan, what has made conservatives especially embrace that term, originalism?

TURLEY: Well, the most telling moment of the hearings came within the first two minutes in her first answer. When Judge Barrett described herself as an originalist - it was the clip that you played - that was a full-throated, unambiguous embrace of originalism. Indeed, I can't remember as strong a statement coming from any modern nominee. And many nominees have called themselves originalists, but she may be the first one to actually mean it since Scalia. I mean, she's a real originalist. She believes that these words are set in sort of constitutional amber when they are ratified and...

INSKEEP: And when she says the meaning it had at the time people ratified it, I'm curious about the implications for now. If we presume that the founders did not have gay rights on their mind, there can therefore be no gay rights?

TURLEY: Well, it depends on the specific constitutional right, but it is certainly a fair question to ask. What Justice Scalia said as an originalist was that notions of values like privacy were not part of the Constitution. He said that he doesn't see this embrace of privacy existed at the time as it does today. And so he was rather pronounced in his rejection of updating the Constitution or viewing it as a living document that changes with time. Judge Barrett clearly indicated that she subscribes to that view. She was asked, well, how do you judge that definition of terms in terms of a time frame? And is it just the day it's ratified? And she said, well, no, you might want to look at the previous few months or maybe a couple of years. That's a relatively narrow timeframe.

INSKEEP: Still a long time ago. Let me bring in Elizabeth Wydra now because I want people to know your think tank describes itself as originalist but also progressive. We've thought of originalist as an idea embraced by conservatives. But you're progressive, which tells me that progressives are finding something powerful in this approach that you want to use, too.

WYDRA: Absolutely. So, you know, you don't just look at the Constitution as it existed in 1789. You look at the entire arc of progress as we the people over time have amended the Constitution to make it more equal, more inclusive, more free. You know, you think of the transformative amendments guaranteeing equal protection of the law for all persons after the Civil War...

INSKEEP: Sure.

WYDRA: ...The right to vote amendments that make it a protected right for people, regardless of race or gender or the ability to pay a poll tax. And when you look at that entire Constitution and its sweep of progress, it is in its most inherent respects a progressive document. The problem is that some conservative originalists, like Justice Scalia and I fear like Judge Barett, privilege this 1789 version of the document over really that entire whole Constitution, which is remarkably progressive and includes important rights like marriage equality, like reproductive choice, like robust and meaningful civil rights and racial justice.

INSKEEP: Well, let's see if Jonathan Turley agrees with that. You mentioned reproductive choice. Jonathan Turley, do you think an originalist would look at the Roe v. Wade decision in 1973 and find a problem with it from an originalist perspective?

TURLEY: Oh, originalists have found considerable problem with Roe's constitutional interpretation. They do not see that foundation in the original document. Elizabeth's point is a perfectly good one. These are the rivaling views of how to interpret the Constitution. But what Justice Scalia and Judge Barrett have said is that when you begin to allow the Constitution to evolve with time, it creates democratic problems. That is, it's the courts that are bringing new meaning to this document. And that raises some legitimate questions in their minds. And I think that when you look at her work, you'll see that she tends to go back to these first principles, much like her mentor. In this case Kanter on the Second Amendment, for example, that received a great deal of discussion, I think you really see her methodology. She goes first to those principles and then works back from them.

INSKEEP: And let's bring Elizabeth Wydra back again. You just said that you think reproductive rights are in the Constitution, even if the exact words are not in there. But you fear that Barrett is not going to see it that way. Do you listen to Barrett and hear someone that you think would take the opportunity to overturn Roe v. Wade if the right case came along?

WYDRA: Unfortunately, yes. And I think, you know, you need to look no further than Justice Ginsburg, who herself looked at the Constitution and looked at the fact that the 14th Amendment was ensuring the equal citizenship stature of women just as to men and the idea that, how could a woman possibly be an equal citizen if she could not control her own choices, whether or not to have a child? And I think what happened at the hearing was very important. Judge Barrett refused to say that Roe was a superprecedent that was so well-established and women across the country relied upon.

But it's also important to look at what happened before the hearing. We have President Trump saying explicitly that a litmus test for any nominee he would put forth is the willingness to, in his words, automatically overturn Roe v. Wade. And Judge Barrett at her hearing did not, like then-Judge Ginsburg did at her hearing, make clear that it is absolutely a constitutional right protected by the broad language of the 14th Amendment, even implicated in the 19th Amendment, which guarantees equal citizenship to women, that, of course, there is this right. And so people should be extremely concerned about that.

INSKEEP: Elizabeth Wydra is president of the Constitutional Accountability Center. And Jonathan Turley is a law professor at George Washington University. So much to say here. Thank you to you both.

TURLEY: Thank you.

WYDRA: Thank you. Transcript provided by NPR, Copyright NPR.