There she sat, surrounded by warring political armies.  Behind her were six of her seven children and her siblings.  Serene, unflappable and respectful through 4 days of hearings, she was clearly the smartest person in the room.

According to one side, she would be a deciding vote to declare the Affordable Care Act (Obamacare) unconstitutional, to overturn the abortion holding in Roe v. Wade and to decide the presidential election in the favor of her sponsor, President Donald Trump.  The Senate Minority Leader, Charles Schumer of New York, called it “… the least legitimate nomination to the Supreme Court in our nation’s history.”

One of the most interesting comments came from Greta Thunberg, the teenage climate change activist, who was Time’s Person of the Year in 2019.  She called Barrett a “flat earther” apparently in the belief that the Supreme Court has the ability to decide the pros and cons of global warming.

To the Republican side, she was impeccably credentialed, respectful of precedent and judicial restraint and, because of that, was not to be feared.

When asked about her positions on issues that would come before the Court, she invoked the “Ginsburg rule” articulated by Ruth Bader Ginsburg in her own 1993 confirmation hearing:  “No hints, no previews no forecasts.”  The “Ginsburg rule” has been cited repeatedly by other nominees who did not care to preview their positions on controversial issues.

The Darth Vader in the hearing (besides Trump) was the ghost of the deceased Justice Antonin Scalia for whom Barrett had been a clerk after law school.  Scalia had been a proponent of an “originalist” theory of interpreting the Constitution which, in a nutshell, means that the words of the document are to take precedence over what we would now like them to mean.  Barrett agrees with Scalia on this.  Scalia was approved without a dissenting vote when he was confirmed in 1987. 

Commentators have taken to the opinion pages of the New York Times and the Atlantic (to name just two) to decry the “originalist” theory of constitutional interpretation, most saying that the world has changed since 1798 and, accordingly, the original document is not relevant to many current problems before the Court.  

Of course, the Constitution also has changed materially since 1798 with the adoption of 27 amendments including the 1791 Bill of Rights (Amendments 1-10 granting free speech, religious liberty, due process of law to name just a few), the Civil War Amendments (Amendments 13-15) granting former slaves rights previously denied and Amendment 19 giving women the right to vote. 

The critics of the “originalist” theory rarely point out that the amendments have materially changed the original document.  For example, the Civil War amendments granted newly freed slaves the right of citizens whereas the original document had only counted them as 3/5 of a person for the sole purpose of enhancing the electoral power of slave states.  

The most important was the 14^th Amendment which guaranteed not only the freed slaves but every citizen the rights of due process and equal protection against state attempts to limit these rights.  The 14^th Amendment has turned out to be the greatest restraint on state government and state laws and, as such, completely turned the 1789 Constitution on its head as that document and the 1791 Bill of Rights restrained only the federal government not the states.  Indeed, all powers not enumerated to the Federal government were to reside with the states (Amendment 10).  The 14^th Amendment gave citizens constitutional rights against the states.  

In 1954 the Court decided Brown v. Board of Education which held that state racial segregations of public schools violated the equal protection clause of the 14^th Amendment.  In relatively quick succession the Court applied almost all of the individual Bill of Rights (Amendments 1-10) to the states.

Suffice it to say such restraint on state power would have been unthinkable to the Founding Fathers and would have produced numerous hissy fits.

Critics of Scalia and Barrett seem to freeze them like an insect in amber into the year 1789 when the Constitution was ratified.  But the Constitution has grown organically and in response to numerous challenges.  To accuse them of being stuck in 1789 is both silly and wrong.   “Originalists” first concentrate on the word of a document whether it be the word of the 1789 document or the words of the amendments to the document.  That seems to be an entirely appropriate way to proceed.

The Democrats obviously decided that the Barrett hearing was an opportunity to make points for the upcoming election.  Unable to stop the Republican steamrolling of her nomination, they went “all in” by suggesting that she would be a vote to declare Obamacare unconstitutional in a case now on the Supreme Court docket.  

So, on the first day, every Democratic senator displayed a picture of a constituent with a “pre-existing condition” who would be adversely affected if Obamacare was struck down.  On the day of the committee vote, the Democrats boycotted the vote but placed a picture of the affected constituent at their seat.  Apparently, the “focus groups” had agreed that healthcare and “pre-existing conditions” were electoral gold.  

The only television visual more powerful than the constituents with pre-existing conditions was probably Barrett holding up her “notes” during the hearing – a blank piece of paper.

So is Barrett likely to declare Barack Obama’s signature legislative accomplishment unconstitutional, particularly since it has been in the crosshairs of Trump since Day One?  The first casualty in political warfare is usually the truth.  The Democrats’ concentration on Obamacare was good politics but the case before the Supreme Court is unlikely to result in Obamacare being declared unconstitutional.  The reason is the legal doctrine of “severability” which means that a judge will always attempt to uphold the rest of a statute even if a portion of the statute is unconstitutional.  Chief Justice Roberts has already “saved” Obamacare once and the then offending provision (financial penalty for not purchasing insurance) is no longer operative.  I think the doctrine of “severability” will result in a decision in favor of Obamacare that may be as great as 9-0 but, maybe more likely, 7-2 with Barrett in the majority.  Wouldn’t it be fitting if Chief Justice Roberts assigned Barrett to write that majority opinion?

A friend asked me what I thought about Judge Barrett. I replied that I hoped for the following: “That Barrett be confirmed and that Trump be ousted in an historic landslide.”

One down; one to go.

Do your part.