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Will Barrett Confirmation Undermine SCOTUS' Essential Role?

Professor Glenn Smith

Had Republican Senate ranks contained more true “conservatives”—rejecting short-term opportunism in favor of longer-term conservation of our governmental institutions and the rule of law—our country, our Court, and our Constitution could have avoided the very real damage Judge Amy Coney Barrett’s confirmation threatens, wrote California Western Professor and Supreme Court expert Glenn Smith in a commentary published late last month in JURIST.

We could have escaped the seemingly inevitable decline in confidence that the Supreme Court can perform its essential role as an independent check and balance in our constitutional system, continued Smith.

Americans of all political parties and ideological stripes should deeply regret the lack of principled conservatism, wrote Smith, whose commentary explained how the present conscience vacuum is not the way it always has been or had to be.

From his personal experience as a Senate staff counsel in the early 1980s, Smith recounted how Reagan-era legislators proposed an unprecedented number of “court-jurisdiction-stripping” bills to strike back against disfavored Supreme Court rulings invalidating school prayer, promoting abortion rights, and allowing busing to achieve school desegregation.

As the name implies, court-jurisdiction stripping seeks by ordinary legislation to “reverse” the direction of constitutional rights by stripping the Supreme Court, and in some versions, lower federal courts, of the power to establish or elaborate key constitutional doctrines. The cynical calculation is that the constitutional limits and protections targeted by the jurisdiction-stripping legislation will alter or degrade over time without the federal judiciary being able to provide a meaningful check.

Luckily for our constitutional democracy, Smith observed that in the earlier time frame a bipartisan group of Senators, including indisputably conservative Republican Senate lion Barry Goldwater, joined William French Smith, President Reagan’s Attorney General, and scholars of widely variant ideologies to oppose court-jurisdiction stripping. Smith viewed the foresight of the conservative opponents as especially laudable, because they likely agreed with the short-term political objectives behind at least some of the court-jurisdiction-stripping bills.

Smith found major parallels between court-jurisdiction stripping and the confirmation of Judge Barrett. Both threaten to further erode the critical ingredient the Supreme Court and its justices need to restrain, as they have at some critical times in our nation’s history, overreaching by public officials from both political parties and various ideologies. The Court’s ability to play honest constitutional brokers—especially in a highly polarized political environment—is rooted in public confidence that the justices individually and collectively are able to render rulings that to the extent humanly possible rise above short-term politics in favor of longer-term, rule-of-law values.

Smith praised those rejecting court-jurisdiction-stripping efforts in an earlier era as wisely seeing that the true “conservative” practice was to preserve the Framers’ choice to substantially insulate the Supreme Court from partisan political influences. He concluded: If only cooler consideration had again prevailed this time!

Read Professor Glenn Smith’s complete JURIST commentary here.