Amy Coney Barrett and the Problem of Conservative Judicial Deference
Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit is reportedly at the top of President Donald Trump’s shortlist of candidates to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court. A former Notre Dame law professor, Barrett is a popular and respected figure in conservative circles. But any conservative or libertarian who hopes to see the federal courts pay greater heed to the original meaning of the 14th Amendment is likely to be troubled by some of Barrett’s writings on judicial deference and economic liberty.
In 1938 the Supreme Court concocted a bifurcated approach to judicial review that treats some constitutional rights as more equal than others. If a law or regulation infringes on a right that the Court has deemed fundamental (such as freedom of speech or the right to vote), the Court said in United States v. Carolene Products Co., the judiciary should presume that law or regulation to be unconstitutional and subject it to “more exacting judicial scrutiny.” By contrast, in cases dealing with “regulatory legislation affecting ordinary commercial transactions,” Carolene Products stated, “the existence of facts supporting the legislative judgment is to be presumed.” In other words, judges are supposed to tip the scales in favor of lawmakers when economic liberty might be at stake.
Now known as the rational-basis test, this rubber stamp approach has led to some truly dreadful judgments. Take Goesaert v. Cleary (1948), in which the Supreme Court upheld a Michigan law forbidding women from working as bartenders unless they were “the wife or daughter of the male owner.” Valentine Goesaert, who owned a bar in Dearborn, fought for her right to tend bar in her own establishment. She lost thanks to rational-basis deference.
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