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How Amy Coney Barrett Could Shape The Supreme Court For Decades

RACHEL MARTIN, HOST:

The Senate will vote to confirm Judge Amy Coney Barrett to the Supreme Court today. Barrett will secure the court's move to the right, becoming the sixth conservative on the bench and the third nominated by President Trump. To understand how a Justice Barrett may shape the court for years to come, we are joined by Randy Barnett. He's a professor of legal theory at Georgetown University and the author of "Our Republican Constitution: Securing The Liberty And Sovereignty Of We the People." Professor Barnett, thanks for being here.

RANDY BARNETT: I'm glad to be here, Rachel.

MARTIN: We have been saying that Amy Coney Barrett would be the sixth conservative on the court. But Chief Justice John Roberts often acts like a swing vote. How do you measure how a Justice Barrett would shift the balance of the court?

BARNETT: Well, we've never really had a court like this in my adult lifetime. We have always had a swing vote. We had Justice Powell, followed by Justice O'Connor, followed by Justice Kennedy. And then, Chief Justice Roberts has been acting like a swing vote lately. If you're the fifth vote in this coalition, whether it be on the left or the right, you start to give one to some side, give one to the other side. As a result, the court as a whole has given some decisions to one side, some decisions to the other side, depending on how the swing vote swings. That's why they call it a swing vote.

With six - potentially six people in the coalition, we could expect a lot less swing. I think that's the way to put it would be less swing and less pressure on whoever the fifth vote would be to swing. So I think we might see more 6-3 decisions because Chief Justice Roberts, no longer the swing vote, might want to make a 6-3 vote as opposed to the controversial 5-4 vote.

MARTIN: Like nominees before her, Judge Barrett was careful not to tip her hand too much during the hearing as to how she would vote on certain cases. But she was forthright about defining herself as a constitutional originalist. This is also, I understand, how you describe yourself as well. Can you explain how that judicial philosophy is likely to shape her decisions?

BARNETT: Well, first of all, I'll just define originalism in one sentence - it is that the meaning of the Constitution should remain the same until it's properly changed by amendment and not by judges. So it's the philosophy that judges can't change the meaning of the Constitution. They have to follow what it says the way they would follow the words of a statute. So my guess is that she's going to favor a more textualist approach, which is also favored by Justice Thomas and is favored by Justice Gorsuch and by Justice Kavanaugh - and more textualist approach.

And so she's going to join those others. And I think that might actually affect oral argument in the court. If, now, somebody asks - what is the originalist argument on behalf of your position? - that means that litigants before the court are going to have to prepare that answer, which means they're going to have to think about what the original meaning of the Constitution is. That might trickle all the way down to law schools, where I teach. We might actually start having to teach students how to do this kind of thing so that they can litigate in the lower courts and in the Supreme Court.

MARTIN: Lastly, I want to ask about this. Joe Biden made his clearest comments to CBS' "60 Minutes" in an interview that was broadcast last night about the question of expanding the court, expanding the number of justices on the court. He said he wants to set up a commission to look into this because it's, quote, "gotten out of whack." I mean, considering how Republicans held Merrick Garland's nomination, what do you make of this? Has it gotten out of whack?

BARNETT: Well, there's a big difference between choosing - selecting judges because of the viewpoints that they hold, which is something every president does - it is how Franklin Roosevelt got control of the court when he appointed eight of the nine justices. There's a difference between doing that and expanding the number of justices in order to gain a partisan or ideological advantage. We have a 150-year norm against expanding the court numbers in order to gain a partisan advantage. When Roosevelt proposed doing that, he was soundly repudiated by his own party, which held a supermajority in Congress.

MARTIN: So you think, even considering the politicization of the process by Republicans when it was about Obama's nominee, considering expanding the number of judges on the court - which has been done before - you just think that's not acceptable?

BARNETT: It hasn't been done for 150 years. It has not been done for partisan advantage for 150 years. And in order to do that, they're going to have to end the legislative filibuster in the Senate, which will end any bipartisanship when it comes to legislation. And that's going to destroy the institution of the Senate. So for both of those reasons, I don't think this is advisable.

MARTIN: Randy Barnett, constitutional law professor at Georgetown. Thank you for your time.

BARNETT: My pleasure. Transcript provided by NPR, Copyright NPR.