By: Nick Tuori, Marquette Law Class of 2022
On Thursday, October 22, 2020 the Marquette University Law School Chapter of the Federalist Society hosted Ramesh Ponnuru, a journalist for National Review and a visiting fellow at the American Enterprise Institute. He was joined by Marquette Law Professor Chad Oldfather, who has extensive scholarship about the judiciary, in addition to teaching Constitutional Law, to discuss the evolving federal judiciary. Mr. Ponnuru started the meeting off with a historical overview of the changing judiciary, and discussed the most common theories explaining why these changes are occurring.
“As the court has become a more important political player, the politicization of the court and the interests of political actors in the court will continue to rise,” Ponnuru declared. “One of the central issues of politics in the judiciary is abortion. Conservatives have continued to be mobilized on the judiciary compared to liberals, and that could be because conservatives tend to be more passionate about abortion.” Professor Oldfather added that he felt that there has been a transition in research surrounding the courts, as it has become more partisan.
Ponnuru added that Conservatives also tend to feel like they have been betrayed by nominees. In his opinion, the last time a liberal justice did not appear to vote along the Democratic party line was probably Byron White back in 1962.
This emphasis placed on the judiciary allowed President Trump to win the 2016 election on the back of the importance of the Supreme Court. Ponnuru added that about 20% of voters said they voted with the Supreme Court as their top priority, and many in that subset were conservative voters.
The panelists’ discussion transitioned to the recent hearings of Supreme Court nominee Amy Coney Barrett. First, Professor Oldfather remarked that the confirmation process has become poisoned in ways that it never had previously. He had connected this change to the shift in the Senate, as well as a shift in the political culture. They both agreed that one of the biggest reasons that this hearing was less hostile than other hearings, such as that of Justice Kavanaugh, was that the main objections here were procedural.
The procedural concerns in the Barrett hearings are based mostly around the timing of the nomination. Democrats have clamored about the hypocrisy of this nomination after the way that Republicans handled the Merrick Garland nomination in 2016, citing a similarity in timing (but failing to in most cases to acknowledge that the Senate majority is in line with the Presidency this time, unlike 2016). When the Senators got past the procedural concerns, there was very little ammunition to attack Judge Barrett during these hearings. Her qualifications cannot be attacked, and Professor Oldfather added that attacking her religion would not be in the Senate Judiciary Committee’s best interest. Additionally, since the votes were clearly not there to vote against Judge Barrett, Professor Oldfather mentioned that the ideological attacks present in the Robert Bork confirmation hearings would be irrelevant.
Ponnuru added that those concerns about the confirmation happening during the election season did not measure up once the hearings commenced. Instead, you saw many Senators use the nomination hearings to promote their policies and platforms, and as a political statement against President Trump and the Republicans. You saw this when the Senators repeatedly brought up the Affordable Care Act, and the allegation about the confirmation of Justice Barrett serving as the gateway to repealing the Affordable Care Act.
Assuming that Judge Barrett is confirmed, the two panelists discussed potential legal areas that could be revisited with this new conservative majority. They included topics such as religious liberty, the dormant commerce clause, the non-delegation doctrine, and other precedent. They also briefly touched on the possibility of Roe v. Wade being revisited.
One additional topic of interest during this conversation was Professor Oldfather’s commentary on the “Celebritization of Justices”. Easy examples of this would be the late Justices Ruth Bader Ginsburg and Antonin Scalia. This phenomenon has increased the past few years, with the need for content on 24-hour news networks and the internet. As society has become more polarized and people become members of “teams”, they point to justices as exemplars of those teams. It leads one to wonder whether judges, either consciously or subconsciously, may have this “team mentality” and partisanship on their mind during the decision-making process. Professor Oldfather later stated that a good judiciary would indicate that even though someone may be “on your team”, your political side may lose. The judges should rule according to the law, rather than partisanship.
The Marquette University Law School Chapter of the Federalist Society would like to thank both Ramesh Ponnuru and Professor Chad Oldfather for participating in this discussion. They both provided tremendous insight on the topic of the evolving judiciary, touching on both historical trends and current implications.
The Milwaukee Chapter thanks the Marquette Chapter for sharing a recap of this event with our members. Join our email listserv to learn about Marquette Law events open to the public.