Amy Coney Barrett to tell senators: Courts ‘should not try’ to make policy

Judge Amy Coney Barrett, President Trump’s nominee to the Supreme Court, is expected to tell members of the Senate Judiciary Committee that the judicial branch “should not try,” or be expected, to make policy. 

Barrett will use her four-page opening statement, a copy of which was obtained by The Hill, to broadly tip her hand to her legal philosophy and align herself with the late Justice Antonin Scalia, who was a member of the court’s conservative wing. 

“It was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like,” Barrett is expected to tell senators.

“Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try,” Barrett will add, according to her opening remarks. 

Barrett, who previously clerked for Scalia, will deliver the remarks before the panel on Monday, the first day of a four-day hearing on her nomination to succeed the late Justice Ruth Bader Ginsburg. 

Barrett, who is expected to lock in a 6-3 conservative majority, will offer praise for Ginsburg as part of her opening remarks. 

“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led,” Barrett will tell members of the Judiciary Committee. 

Barrett’s nomination to the Supreme Court comes only weeks before Nov. 3, keeping an explosive fight over the future of the judiciary at the forefront of the election. Though other nominees have been confirmed in a shorter amount of time, Republicans will set a record for the closest to a presidential election a nominee has been confirmed if they put Barrett on the bench, as expected, later this month. 

Barrett, in her opening statement, is expected to sidestep what will be some of Democrats’ biggest questions, including her views on the Affordable Care Act, recusing herself from election-related cases and if she will feel bound by previous Supreme Court precedent. 

Senate Minority Leader Charles Schumer (D-N.Y.) said during a press conference in New York on Sunday that Barrett did nothing in her opening statement to address concerns about how she could impact Americans’ health care and that supporting her is voting for an “activist judge whose mission … will be to implement a deeply unpopular, hard-right Republican agenda.”

“Nothing in her opening statement allays the concerns America has that she will overturn ACA and hurt people’s health care and she will act to undo Roe v. Wade,” Schumer said.

Schumer, during his press conference, called on Barrett to recuse herself from a case set to be heard by the Supreme Court in November that could determine the fate of the Affordable Care Act.

“This nominee comes before us with serious conflicts of interest, and we’re here today to say that, given Judge Barrett’s conflicts of interest, she should recuse herself from any decision involving the Affordable Care Act and its protections and any decision related to the election that we will have on Nov. 3,” Schumer said.

Instead, Barrett will give a general peek at her thinking as she’s deciding how to rule on cases, saying she wants her decisions to be “fairly reasoned and grounded” in law. 

“When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how would I view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law?” Barrett will say. 

“I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written. And I believe I can serve my country by playing that role,” she will say.