I suppose it represents a minor victory that even the most committed of judicial consequentialists feels obliged to disclaim their consequentialism. But it sure makes reading them difficult. At Slate, Dahlia Lithwick begins her most recent essay by insisting that she is not arguing that Supreme Court justices should make up the law in order to yield outcomes they prefer. By the end of it, however, she is arguing exactly that. Any reader who makes it that far is likely to come out with whiplash.
Amy Coney Barrett’s record, Lithwick writes,
has proven to be a perfectly coherent and intellectually rigorous effort to adhere to an originalist’s view of the world.
And yet in Lithwick’s view this is a bad thing, because, unlike Ruth Bader Ginsburg, Barrett seems unwilling to alter laws that she believes were badly written. Lithwick contends that “it is certainly not Barrett’s job to fix problems.” But, having said that, she praises Ginsburg for . . . well, for fixing problems. Ginsburg’s “entire worldview,” Lithwick writes, “was predicated on the idea that the Constitution and statutory language were necessarily imperfect.” Moreover, Ginsburg’s aim as a Supreme Court justice was to address that imperfection:
If there is a throughline in Ginsburg’s constitutional approach, it was an effort to make invisible people visible to her colleagues at the court and, if that failed, to the country and the world. Whether it was male caregivers trying to benefit from tax laws, or female cadets at Virginia Military Institute, or Lilly Ledbetter being denied a remedy for persistent, systemic pay discrimination, or the workers of Walmart, or the employees of Hobby Lobby, or minority voters in the South, or immigrants, prisoners, LGBTQ Americans, or Milwaukee voters vainly attempting to vote during a pandemic, Ginsburg saw them, and understood that her actions would influence their lives.
Unwilling to pay the price for such an admission, Lithwick quickly adds:
This isn’t “judicial activism” or “legislating from the bench,” but rather a lifelong effort to broaden the notion of equality to include marginalized, powerless, forgotten, and invisible groups.
But, obviously, this is “legislating from the bench.” Amending insufficient or unclear statutory text is the role of a legislator or of a participant in the constitutional amendment process, not of a judge. How, one wonders, can it possibly be true that it is “certainly not Barrett’s job to fix problems” and that Ginsburg was admirable for fixing problems? Could it be that Ginsburg wasn’t doing her job?
Eventually, Lithwick’s piece collapses in on itself in a hail of sentiment, indignation, and incoherence. Having run through the stories of some sympathetic characters who have been wronged by the judicial branch’s textualist “heartlessness,” the final word Lithwick writes is “consequences.” At least her conclusion is honest.