Amy Coney Barrett is a judge whose nomination by President Trump to fill the Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg was the subject of two episodes of The Bob Zadek Show in late 2020. The excerpts present Barrett primarily through the assessments of two constitutional law scholars, Josh Blackman and Randy Barnett, rather than through her own words or rulings.
The 2020 nomination
Bob Zadek opened the September 24, 2020 episode by describing “scary times,” citing the passing of Ruth Bader Ginsburg and the selection by President Trump of Amy Coney Barrett to fill the seat vacated by Justice Ginsburg’s passing. Zadek framed the timing as an accident of its being right at election time, and raised the possibility of one party controlling all three branches of government after the election, including the packing of the Supreme Court. He said the country could be living in a political climate in a few short months that in his opinion it had never experienced in its 231-year history, with attention directed to the Supreme Court, which he called the unelected branch of government Eight-Dimensional Chess (2020).
In the October 9, 2020 episode, Zadek said Americans were required, if they wished to intelligently participate in government, to understand the dynamic of the Supreme Court — the branch with no budget and no power to enforce its rulings, comprised of nine unelected, serving-for-life public servants. He asked how that branch had become so important and whether that was healthy, and said listeners had to take an informed position on the probable likelihood of the elevation of Judge Amy Coney Barrett to be a justice on the United States Supreme Court Amy Coney Barrett on Trial (2020).
Originalism and deference
Randy Barnett, introduced by Zadek as a legal scholar who teaches con law, contracts, and legal theory at Georgetown Law School, said he strongly supported Amy Barrett’s confirmation to be a justice on the Supreme Court notwithstanding a real disagreement with her. He cited her character, intelligence, and background as an experienced law professor who has written great scholarship, and said she is an originalist who understands what originalism is; he expressed confidence that she would remain an originalist on the court and would not be seduced by the power that Washington and the establishment can offer Supreme Court justices Amy Coney Barrett on Trial (2020).
Barnett identified the point of disagreement as deference. He said that when a judge decides whether legislation is within the power of a legislature to enact — whether within the enumerated powers of Congress or within what is called the state’s police power — the question is how much the judge defers to the judgment of the legislature and how much to the decision of the individual citizen to exercise the liberty the statute restricts. He described three approaches: a presumption of liberty, under which the legislature can rebut the presumption by presenting evidence or argument; a presumption of constitutionality, under which the citizen must rebut the presumption; and a third approach, which he said the courts have taken in many cases and which Judge Barrett defends under certain circumstances, under which laws are presumed constitutional and citizens are not allowed to contest that presumption, so long as any conceivable rational basis for the law can be identified Amy Coney Barrett on Trial (2020).
Barnett said that when Barrett reviewed his book Our Republican Constitution, she specifically took issue with the issue of deference. He said he would expect her, as she explained in her commentary on his book, to be more deferential to the opinion of Congress where there is a general injunction or where Congress exercises one of its powers in a way that is either unnecessary or improper. He characterized her formulation as saying that Congress gets to make policy judgments and courts are not competent or capable of making policy judgments, and said that stated that way he does agree with her. He added that he does not think it is a policy judgment for a court to ask Congress to explain why it is doing what it is doing and why it is necessary and proper, and then to exercise independent judgment over that claim Amy Coney Barrett on Trial (2020).
Barnett also said there is one wrinkle: it will depend on what her view of stare decisis or precedent is, which he called a separate question. He said he thinks she will enforce the rules of the Constitution where those rules are clear Amy Coney Barrett on Trial (2020).
The presumption of liberty
Zadek drew a parallel between Barnett’s presumption of liberty and the presumption of innocence in criminal law. He said the cornerstone of the criminal law system is the presumption of innocence, that the burden is on the state to prove an individual committed a crime, and that the reason is that to the Founders and to all of us liberty is more important — if we are going to err, we would rather err on the side of preserving liberty. He reasoned that since every law in one way or another deprives us of a liberty, the presumption should be on liberty, consistent with the criminal law philosophy Amy Coney Barrett on Trial (2020).
Barnett described the result of the deference he said Barrett and many other conservatives favor as a system of double deference. He said a litigant tells the Supreme Court that a measure is not within the power of Congress because it is unnecessary or improper, and the court defers to Congress; the litigant then goes across the street to the Capitol and asks a congressman or senator whether it is within their power, and they say yes because the Supreme Court will uphold it — the congressman deferring to the Supreme Court while the Supreme Court defers to Congress. When each side defers to the other, Barnett said, what drops out of the equation is the Constitution, and in particular constitutional limits on legislative power at the federal level and at the state level Amy Coney Barrett on Trial (2020).
Across episodes
The two episodes treat Barrett’s nomination as a shared occasion but divide the subject: the September episode, with Josh Blackman, frames the stakes of the confirmation and the prospect of court packing, while the October episode, with Randy Barnett, examines Barrett’s constitutional philosophy and the specific disagreement over deference. The excerpts show no development in the treatment of Barrett between the episodes; the later episode supplies the substantive assessment of her jurisprudence that the earlier one does not reach.
What the sources do not cover
The excerpts do not include Barrett’s own statements, testimony, or written opinions, and they do not describe any case she decided or any provision of the Constitution she interpreted. Her confirmation vote, its outcome, and her subsequent service on the Court are not reported in these excerpts. The sources also do not state her age, her prior judicial position, or the date or result of her confirmation.