This week’s episode recaps the Senate Judiciary Committee’s Supreme Court confirmation hearings for Judge Amy Coney Barrett, discussing what the hearings revealed about Judge Barrett’s career, her judicial philosophy, and her approach to stare decisis and constitutional interpretation including her views on originalism, and how, if confirmed, Justice Barrett might rule on legal questions including: the recent challenge to the Affordable Care Act, reproductive rights, presidential power, any disputes arising from the 2020 election, the Second Amendment, religious liberty, race and criminal justice, and more. Kate Shaw, professor at Cardozo Law School and co-host of the Supreme Court podcast Strict Scrutiny, and Michael Moreland, University Professor of Law and Religion at Villanova Law, join host Jeffrey Rosen.
Terms that will be helpful to know for this week:
- Stare decisis: Latin for “to stand by things decided”; the doctrine of precedent—adhering to prior judicial rulings.
- Originalism: A judicial philosophy of constitutional interpretation holding that the words in the U.S. Constitution should be interpreted as they were understood at the time they were written.
- “Super precedents”: Landmark Supreme Court decisions whose correctness, according to many, is no longer a viable issue for courts to decide and so are unlikely to be overturned.
- Severability: A principle by which a court might strike down one portion of a law but the remaining provisions, or the remaining applications of those provisions, will continue to remain in effect.
FULL PODCAST
PARTICIPANTS
Kate Shaw is a Professor of Law and the Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo Law. She previously worked in the White House Counsel’s Office under as a Special Assistant and Associate Counsel to President Obama. She’s also a contributor with ABC News and co-hosts the Supreme Court podcast Strict Scrutiny.
Michael Moreland is University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova Law. He served as Associate Director for Domestic Policy at the White House under President George W. Bush, has previously taught at Notre Dame Law, and holds a PhD in theological ethics.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Transcripts of the hearings: day 1, day 2, and day 3
- On "super precedents":
- “Precedent and Jurisprudential Disagreement” by Amy Coney Barrett
- "Super Precedent" by Michael J. Gerhardt
- Roe v. Wade
- Griswold v. Connecticut
- California v. Texas
- King v. Burwell
- Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission
- Our Lady of Guadalupe School v. Morrissey-Berru
This episode was engineered by David Stotz and Greg Scheckler and produced by Jackie McDermott. Research was provided by Alexandra “Mac” Taylor, Ashley Kemper, and Lana Ulrich.
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