The Senate is expected to squeak out a vote to send Judge Amy Coney Barrett to the U.S. Supreme Court on Monday, just eight days before the presidential election, and a few days after Democrats boycotted a Judiciary Committee vote on her nomination. As of now, Republicans are projected to have enough votes in the full Senate to confirm Barrett to a lifetime appointment on the nation’s highest court.
If confirmed, what will Barrett bring to the table? A believer in literal interpretations of the Constitution and a former law clerk for the late Justice Antonin Scalia, she’ll be next in line to continue Scalia’s conservative legacy on the court, says Dan Urman, who teaches a course at Northeastern on Constitutional law and the modern U.S. Supreme Court.
“In a lot of ways, she represents the triumph of Scalia,” says Urman, who is also director of hybrid and online programs in the School of Law, and director of the Law and Public Policy minor.
“She’d be the first Scalia clerk to be a Supreme Court justice—something that represents a sort of family tree, or coaching tree. She’s keeping his originalism and textualism alive,” Urman says.
Originalism is a family of legal theories, and one of several frameworks for interpreting the U.S. Constitution. Originalists interpret the provisions of the Constitution based on what they meant to the people who ratified it, Urman says.
Like the Jurassic Park mosquito preserved in amber, “originalism says that the Constitutional provisions are frozen in terms of their meaning,” Urman says. “The only way to change Constitutional meaning is through Article 5, which spells out the amendment process.”
Originalists also argue that new legislation, rather than a new interpretation of the Constitution, is the best way to bring about change.
Opposite originalism is a framework called “living Constitution” a philosophy that regards the Constitution as a living document that’s able to encompass society’s evolving values. Justice Ruth Bader Ginsburg, who died in September, and whom Barrett would replace, followed more generally the living Constitution framework.
Barrett would join three justices who hew closely to an originalist framework: Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. Other justices don’t eschew the philosophy altogether, Urman says, but use it as one tool among many to interpret the Constitution.
Scalia’s greater legacy, however—and one that he likely passed on to Barrett, his mentee—is an adherence to textualism, Urman argues. Textualism is similar to originalism, but is a framework for interpreting legislation rather than the Constitution.
Textualists, Urman says, “consider the words and their plain meaning when they were passed by the legislative body.”
Purposivism is its philosophical opposite—proponents “look to the purpose of the statute; the purpose that the legislative body was trying to accomplish,” he says.
Here, again, Barrett’s position will likely contrast with Ginsburg’s. The late Justice tended to interpret legislative text as one of many ways, rather than the only way, of understanding the meaning of a particular statute.
Indeed, Urman says, replacing Ginsburg with Barrett would prompt an ideological shift on the Court “as much as any Justice since Clarence Thomas replaced Thurgood Marshall” in 1991. Replacing the more liberal Marshall, Thomas has contributed to conservative rulings for decades.
“It’s a huge ideological shift,” Urman said, of Barrett’s potential confirmation.
Barrett seemed to downplay that prospect during her confirmation hearings this month. She testified that she was never asked by President Donald Trump nor anyone in his administration about how she might rule in several politically charged topics that may appear as cases before the Supreme Court.
Urman says Barrett’s statement could obscure the truth.
“She’s a product of the conservative legal movement, and someone who clerked for Scalia,” he says, comparing the situation to a sporting event.
“If I’m at a football game,” he says, “and I see someone wearing a Patriots jersey, and a Patriots hat, with Patriots stickers on their car, and full Patriots face paint, you know what I don’t have to ask? Who they’re rooting for.”