Jorge Pérez Alonso
Lawyer and researcher at the Martínez Marina Seminar on Constitutional History
The death of Ruth Bader Gisburn on 27 September and President Trump’s decision to propose Amy Coney Barrett as her replacement have led to a flood of headlines in which the judge’s curriculum vitae has been completely edged out to label her simply “ultraconservative” or “Catholic”. Even her relative youth (forty-eight years) has been questioned in order to reach the top of the American judiciary, despite the fact that Joseph Story, one of the most brilliant judges who served on the Supreme Court, reached it in 1812 at the age of thirty-one, or that William Rehnquist (the former chief justice) did so in 1972 at the age of forty-seven, one less than Barrett.
What many fear is at stake is nothing less than the internal balance of the Supreme Court, which had been in place since the late 1970s and could, for the first time in half a century, be oriented in a conservative direction. But what is really at stake is a whole legal conception of how to interpret the constitutional text and the position of the judge.
Since the period of reconstruction, there have been two conceptions of the role of the judiciary. There are those who, in favour of judicial activism, defend that the judge must use all the instruments that the Constitution grants him/her when defending citizens’ rights, and that they should not hesitate to make use of the main tool they possess, the judicial review (the capacity for judicial review). Opposing them are those who maintain that many of the judicial conflicts cover up issues of a political nature that must be resolved through such channels. Justice Stephen Field, during his thirty-four and a half years on the Supreme Court (1863-1897), would embody judicial activism, while in contrast, his legal nemesis, Oliver Wendell Holmes Jr.
There is another aspect of no lesser importance, which is the interpretation to be made of the Constitution. There are those who defend that the constitutional text is a living document (living constitution), which must be interpreted in accordance with the social reality of each moment, so that realities that it does not specifically contemplate can be protected. Based on this criterion, a true legal revolution took place in the third quarter of the 20th century, especially when the Supreme Court was presided over by Earl Warren, when rights not formally provided for in the constitutional text were extracted from the text, as in the cases Mapp v. Ohio or the famous Miranda v. Arizona. Even in 1973, during Warren Burger’s time, the Supreme Court expanded the catalogue of rights by including the right to terminate a pregnancy among those protected by the Constitution in Roe v. Wade, a decision that has been on the backburner ever since.
In contrast, there are those who advocate a stricter interpretation of the Constitution, linking it to the intent of its drafters. Amy Coney Barrett herself, in an article published in 2017 with the title Originalism and stare decisis, explains it in a very didactic way: “The originalists maintain that the decisions of previous generations, contained in the ratified text, are binding until the text is reformed. The contours of these decisions are mainly drawn from historical sources. For example, the original meaning of the Constitution can be obtained from sources such as the Constitutional Convention, the ratification debates, the federalist and anti-federalist writings, the actions of the first Congresses and Presidents, and the first rulings of the federal courts”. Therefore, the constitutional text is not something living, but petrified or linked to the intention of the constituents, which must prevail as long as it is not subject to constitutional mutation through the established channels.