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“I think it’s good for the country to have this,” said Sen. Lindsey Graham (R–S.C.) on Monday, the first day of Amy Coney Barrett’s Supreme Court confirmation hearing. “I doubt it’s going to change any minds in terms of how we vote. But I like the idea that a lifetime nominee to the Supreme Court can be challenged, can be tested, and can be understood by the public.”

As the fourth and final session came to a close Thursday, it was hard to believe that the Senate Judiciary Committee met those standards in the way Graham intended.

Barrett was challenged, yes, but mostly by Democrats who pushed her to stake out positions on political questions and feigned outrage when she responded that a good judge does not make decisions based on her own opinions: “My personal views don’t have anything to do with how I would decide cases,” she said. Even so, Barrett’s patience was almost certainly tested by a series of lectures from Democrats on her purported views and by monologues from Republicans on why Democrats are bad. 

After a week of hearings, it’s very unlikely that the public understands Barrett better now than they did on Monday, considering that the committee spent more time posturing than probing the judge’s judicial philosophy. Grandstanding may be an effective political strategy, but it didn’t tell us anything useful or significant about Barrett, and it won’t affect the outcome of her confirmation vote. 

The format for the hearings went something like this: Several Democrats began their allotted time slots, reserved for questioning the nominee, with complaints of procedural unfairness, invoking the COVID-19 pandemic and harkening back to the GOP’s unwillingness to confirm Merrick Garland to the Supreme Court during former President Barack Obama’s last year in office. The word “unprecedented” was thrown around a lot. 

Senators would typically then transition into a speech—emphasis on speech, it was often question-free—about politically-charged issues to which they posit Barrett is a threat: the Affordable Care Act, abortion, same-sex marriage, immigration, and climate change. On day three, we actually heard some questions, but they usually pertained to how Barrett feels about hot-button political topics and corresponding legal precedents—questions that would be unprofessional and unwise to answer given that her feelings are irrelevant. Good jurists should cast aside personal policy preferences when scrutinizing the law, a point Barrett reminded the committee of repeatedly.

Here’s a representative exchange from Wednesday on Obergefell v. Hodges (2015), the Supreme Court ruling legalizing same-sex marriage nationwide:

Sen. Richard Blumenthal (D–Conn.): Think of how you would feel as a gay or lesbian American, to hear that you can’t answer whether the government can make it a crime for them to have that relationship. Whether the government can enable people who are happily married to continue that relationship. Think of how you would feel.

Barrett: Well, Senator, implying that I’m poised to say that I want to cast a vote to overrule Obergefell, and I assure you I don’t have any agenda. And I’m not even expressing a view in disagreement of Obergefell. You’re pushing me to try to violate the judicial canons of ethics and to offer advisory opinions, and I won’t do that.

Such was the common thread that tied the hearings together. Barrett’s judicial philosophy was mentioned on occasion—she considers herself an originalist—though not often in a way that would help the American public better understand that strain of legal thought. Sen. Amy Klobuchar (D–Minn.) mentioned it, for instance, in commenting on the parallels between Barrett and the late Justice Antonin Scalia, for whom Barrett clerked. But Klobuchar’s comments implied that a conservative or originalist approach somehow disqualifies Barrett for the position.

“You said you consider Justice Scalia one of the most conservative judges in our nation’s history as a mentor,” Klobuchar said Wednesday. “So, to me, these tracks lead us to one place. And that is that you will have the polar opposite judicial philosophy of Justice Ginsburg. And, to me, that would change the balance of this court, which is already 5-4 and known as very conservative when you look back through history to 6-3. 6-3. And that would have great repercussions for the American people.” It’s worth mentioning that, though Ruth Bader Ginsburg was an accomplished woman and jurist, she did not own her Supreme Court seat. The American people do.

Other senators preferred to actively campaign. Consider the speech Sen. Kamala Harris (D–Calif.) gave on Tuesday: “After President Trump was elected, Washington Republicans spent nearly a year trying to repeal the ACA [Affordable Care Act], but I will always remember the thousands of Americans from all over our country in all walks of life, who crowded into the halls of the United States Capitol to require that lawmakers see their faces and understand how they would be hurt if there was a repeal of the Affordable Care Act,” Harris said. “Together, with many of my colleagues, I joined civil rights and community leaders to speak to the thousands of people who gathered outside the Capitol, as they pleaded, as they begged with lawmakers to do the right thing.” 

Graham wasn’t above this approach. In response to the complaints he heard on Monday, he opened Tuesday’s hearings with the opposite pitch: “From my point of view, Obamacare has been a disaster for the state of South Carolina,” he said. “All of you over there want to impose Obamacare on South Carolina. We don’t want it. We want something better. We want something different. You know what we want in South Carolina? South Carolina care, not Obamacare.”

The ACA was a popular topic throughout the hearings, and Democratic senators treated Barrett as if she were running to be a senator herself, with the power to make laws rather than evaluate their constitutionality. As Reason‘s Jacob Sullum writes,  the idea that Barrett will overturn the ACA is based on fear, not fact. But such an approach is par for the course for the modern U.S. Congress, which has offloaded much of its legislative duties to the judiciary and the executive branch. 

Nowhere was that mindset more relevant than in Wednesday’s discussions on climate change. Another exchange between Blumenthal and Barrett is instructive:

Blumenthal: You believe that human beings cause global warming?

Barrett: Well, Senator Blumenthal, I don’t think I am competent to opine on what causes global warming or not.

Blumenthal: We all have views on it. I’m asking for your opinion.

Barrett: I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven’t studied scientific data. I’m not really in a position to offer any kind of informed opinion on what I think causes global-

Blumenthal: Do you agree with the President on his views of climate change?

Barrett: I don’t know that I have seen the President’s expression of his views on climate change.

Though there were some exceptions—Sen. Ben Sasse (R–Neb.) comes to mind—most Republican Senators spent their time railing at their colleagues across the aisle. Sometimes it felt appropriate, as when senators tried to counteract what they saw as unfair characterizations of Barrett’s opinions on the 7th Circuit. Other times, not so much.

“I think it speaks volumes that collectively, they’ve had very few questions for you,” began Sen. Ted Cruz (R–Texas) on Tuesday. He then lobbed two softball questions before launching into a 25-minute speech that appeared more appropriate for a campaign stop.

Sen. Josh Hawley (R–Mo.) used a chunk of his time Wednesday to cover Section 230 of the Communications Decency Act, antitrust, and economic concentration, which are now his pet issues in the Senate. And while he stopped short of probing her opinion, he may as well have: “Whether it’s Section 230 or the antitrust laws, one effect of this is to see growing concentrations of power in this country economically that I think are very significant threats to the ongoing operation of our democracy, to the basic ability of the people to control the levers, both of the economy and of culture and of government,” he said. “So I won’t ask for your view on this because these are cases, these are issues, that you very may well be called upon to weigh in on. I hope that you are. But I hope that you will give these issues consideration.”

For her part, Sen. Marsha Blackburn (R–Tenn.) used both her Tuesday and Wednesday slots to talk about the left’s “attack machine” against conservative women. “Women can have it all,” she said, addressing Barrett, who is a mother of seven children, “just not at the same time.” Sen. John Kennedy (R–La.) asked Barrett who does the laundry in her household.

Much has been made about a return to normalcy in politics, and this week provided a preview of that. “I just want to thank you,” said Sen. Dianne Feinstein (D–Calif.) to Graham. “This has been one of the best set of hearings that I’ve participated in.” Graham expressed similar sentiments. The hearings were generally civil and a far cry from Justice Brett Kavanaugh’s hearings in September 2018. But they’re also a reminder of why congressional business-as-usual doesn’t serve the American people.

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Most law professor finish their careers as law professors. Not these two. Former-Professor Josh Hawley is now a Senator from Missouri. And former-Professor Amy Coney Barrett is on the cusp of the Supreme Court. Hawley asked Barrett about Justice Holmes’s Lochner dissent. Her answer expanded into the Lochner era, and the “Switch in Time.” I searched the Gorsuch transcript, and there were no references to Lochner. The Kavanaugh record is not yet prepared, but I do not recall any discussions of Lochner.

The exchange runs from 6:38-9:03.

SEN. HAWLEY: Justice Oliver Wendell Holmes, Jr. said in the famous Lochner case, in his famous dissent in that case, over a century ago, he said “the 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Do you agree with that statement? What do you think he was getting at with that?

JUDGE BARRETT: Justice Holmes‘ famous dissent in Lochner, which was later the position adopted by the Court [in Williamson v. Lee Optical], was that courts should not pour their ideas of good economic policy into the 14th Amendment to stand in the way of policies that the legislatures enact. For example, on questions of maximum hours for bakery workers, minimum wages, those kind of things.

SEN. HAWLEY: You mentioned economic policy. Talk to us a little bit about how a court could substitute its own views in the place of legislature or congress.

JUDGE BARRETT: In the Lochner era, and we saw it also in the cases that preceded the “Switch in Time,” the Court was standing in the way of reforms for workers that legislatures were enacting. If one had a preference for free trade, or if one had a preference of having no minimum wage, or having a minimum wage, to hold such a statute that did the opposite of your policy preference unconstitutional because it did’t comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution.

SEN. HAWLEY: Most judges are not economic experts. Are there dangers in general with courts acting as economic policymakers, the setting economic policy—deciding economic policy? Is that something courts should be wary of outside their area of expertise?

JUDGE BARRETT: I’m certainly not an economist. I think courts are experts in interpreting law. We’ve been trained in law school, and that is what we are good at and what we should stick with.

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Generations of law students are taught about the majesty of Brown v. Board of Education. As the story goes, Chief Justice Warren was able to craft a narrow, unanimous opinion, to ensure the opinion would be widely accepted. And, with Brown, the Court finally overruled Plessy and the separate-but-equal doctrine. Most casebooks do not describe what happened next. Most students do not learn about Brown v. Board of Education II. Most students do not learn about the massive resistance. Most casebooks do not include  Cooper v. Aaron.

The truth is far more complicated. Chief Justice Warren was able to finagle a unanimous opinion that said very little. It didn’t overrule Plessy. It didn’t require immediate desegregation. The majority decision allowed the lower courts to supervise desegregation with “all deliberate speed.” And the standoff at Central High School in Little Rock, Arkansas demonstrated that the federal courts, standing by themselves, were feckless. Indeed, after the Court decided Cooper v. Aaron, school districts simply shut down rather than comply with court orders. (See my article, The Irrepressible Myth of Cooper v. Aaron). The Court’s assertion of judicial supremacy was met with silence. This decision, better than any other, reaffirms that the Court is the least dangerous branch.

But judicial nominees do not dare recite this actual history. During his first hearing, Judge Kavanaugh repeatedly brought up the mythicized version of Brown. Even when he was not asked about Brown. (He also repeatedly brought up the unanimous U.S. v. Nixon decision, which was a prelude to his Vance dissent.) Over and over again, he praised Chief Justice Warren for reaching a unanimous decision. Kavanaugh certainly knows the true impact of Brown. But he wouldn’t say it, because the myth signals the right virtues. Here is how Kavanaugh described Brown during a colloquy with Senator Grassley:

But Brown v. Board, as I’ve said publicly many times before, the single greatest moment in Supreme Court history by—in so many ways; the unanimity that Chief Justice Warren achieved which is a—just a great moment; the fact that it lived up to the text of the Equal Protection Clause; the—the fact that it understood the real world consequences of the segregation on the African American students who were segregated into other schools and stamped with a badge of inferiority.

(“Lived up to the text”?! Come on.  The text speaks of equal protection, not equal treatment. The opinion did not engage the text at all. And it affirmatively rejected history.)

Judge Barrett refused to buy into this mythicized account of Brown. I encourage you to watch her colloquy with Senator Leahy. It runs from 9:41 through 13:50. (All things considered, I think Leahy is still one of the most effective Democrats on the committee; he has not lost a step.).

First, Leahy reminded Barrett that Judges Gorsuch and Kavanaugh said that the President would have to follow the Supreme Court’s judgment.

SEN. LEAHY: Now, I asked you last time what Justice Barrett would do if a President or even a Senator did not follow a Supreme Court decision. You declined. You said the question may come before you. I then asked you if the Supreme Court would have the final word. You stated the Supreme Court would have the final word as far as the lower courts are concerned. That surprised me, and it concerned me. I’ll tell you why. I asked Justice Gorsuch and Justice Kavanaugh those questions. I asked them what happens, and they made it clear that a President cannot refuse to comply with a court order, and the Supreme Court’s word is the final word on that matter. Justice Gorsuch and Justice Kavanaugh said that. So I would ask you this. Do you agree a president must follow a court order, and the Supreme Court’s word is final, or is the Supreme Court’s word only final as far as the lower courts are concerned?

Barrett’s original comments were exactly right. The Constitution does not give the Court the power to order the President. Perhaps the Court could assert that power. But it is an expansion of authority. I am not even sure the Constitution gives the Supreme Court absolute authority over the lower courts, but vertical stare decisis is a debate for another day.

In response, Judge Barrett segues, and explains that Gorsuch and Kavanaugh repeated the platitude that no one is “above the law.” But she explains that this platitude is just a platitude. No man is above the law, but not all men are subject to the same laws. The Constitution grants the President certain powers, privileges, and immunities, that regular people lack.

JUDGE  BARRETT: Senator, I’m glad to have the opportunity to clarify from our conversation. First, I know that both Justices Gorsuch and Kavanaugh said that “no man is above the law,” and I agree with that.

Next, Judge Barrett goes where other nominee would not. She highlights how feckless the courts actually are:

JUDGE  BARRETT:  But I conversed with Senator Lee yesterday about Federalist 78, which says that courts have neither force nor will. In other words, we can’t do anything to enforce our own judgments. And so what I meant in the conversation with you is that as a matter of law, the supreme court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will, so it relies on the other branches to react to its judgments accordingly.

She is 100% correct. The Court issues its judgments, but relies on others to enforce them. Everyone knows this fact to be true. But I do not recall a judicial nominee acknowledging this constraint on the courts. (Please email if I missed anyone).

Senator Leahy was disturbed by this comment. He then recounts a great story where he had lunch with Hugo Black during the early 1960s.

SEN. LEAHY: I remember as a young law student having lunch, our honor society had lunch with members of the Supreme Court. I sat with Justice Hugo Black. He told me what happened with Brown v. Board of Education. The Court knew that was going to be a very, very tough case, and what did they do? They waited until they had the unanimous opinion, because they knew that the President would have to, and the Congress would have to enforce their law. So let me ask you this. Of course the supreme court has no army. They have no force, but they do have a force of law, and is a President who refuses to comply with a court order a threat to our constitutional system of checks and balances?

Leahy echoed the mythicized version of Brown. But Barrrett will not accept this mythicized account. She explains that the massive resistance illustrated the weakness of Brown. She specifically referenced Cooper v. Aaron. And she managed to namedrop Orval Faubus from memory. You cannot cram that fact. She knew it on her own.

JUDGE  BARRETT: Senator Leahy, I think the example of Brown is a perfect one in the sense that Supreme Court and Brown held that segregation violated the Equal Protection Clause. That was the law, but as you know, there was resistance to that decision, and so it wasn’t until the national guard came in and forced Governor Faubus to allow desegregation that it could happen because the Supreme Court couldn’t do so itself, and in Cooper v. [Aaron]—

Leahy interrupts again, and asks if the President can ignore a court order.

SEN. LEAHY: I understand that, but they made the order. And could a president—if a President refused to follow what they said, could that be a threat to our constitution form the government?

Judge Barrett refuses to accept the premise.

JUDGE  BARRETT: Well, as I said, the Supreme Court can’t control whether or not the President obeys.

Once again, she is right. We would hope that the President would follow a Supreme Court judgment, but the Supreme Court has no control over that matter.

Alas, Judge Barrett took one misstep at the end. She recounted the common myth that President Lincoln ignored Chief Justice Taney’s order in Ex Parte Merryman

JUDGE  BARRETT: Abraham Lincoln once disobeyed an order during the Civil War of a circuit court. So a court can pronounce the law and issue a judgment, but it lacks control over how the political branches respond to it.

Alas, she is wrong on the last part. President Lincoln never ignored an order from Chief Justice Taney in Ex Parte Merryman. Seth Barrett Tillman made this case, and I have yet to see anyone respond. Here, one Barrett can learn from another.

I am proud of Judge Barrett. She must have known this answer would create some vulnerabilities for her. but she gave it anyway. Moreover, this answer tells me a lot about how she understands the notions of judicial supremacy. She does not accept the mythical account of the all-powerful Supreme Court. This answer bodes well for the future.

One final fun fact. I recently re-watched the Dark Knight. There was a scene where the Joker, played by Heath Ledger, gets into a confrontation with members of a corporate board. One of the board members looked just like Pat Leahy. I googled it. It was Pat Leahy! He is apparently a huge Batman fan. He had cameos in Batman Forever (1995), Batman & Robin (1997), the Dark Knight (2008), the Dark Knight Rises (2012), and Batman v. Superman: Dawn of Justice (2016).

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