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Commentary: A justice of our own

By Amy Swearer, The Heritage Foundation on

Published in Op Eds

When I look back at my time in college, in law school and as a young attorney, my legal heroes were always men: Justices Antonin Scalia, Clarence Thomas and the "great dissenter," John Marshall Harlan. This never really struck me as odd, though. The most important thing to me was seeing my personal legal philosophy represented at the highest levels, regardless of whether the justices who held them reflected my gender.

However, if asked to think about it long enough, a part of me perpetually felt like a black sheep as a woman "originalist" — one who refuses to amend or "update" the meaning of statutes or the Constitution based on her personal preferences. I can count on one hand the number of women I knew in law school who took this approach. There certainly was no originalist Ruth Bader Ginsburg-esque female icon for me to look up to and admire in the same way I did Justice Scalia.

Yes, there was Justice Sandra Day O'Connor. But, let's be honest, O'Connor was hardly the staunchest of originalists, even if she sometimes appeared as a female Scalia in comparison to the far more progressive Ginsburg. And please, don't misunderstand me — I adored Justice Ginsburg for many reasons. Yet I always felt some serious discomfort with considering her a personal legal hero. Sure, she was the Notorious RBG, but her legal views rarely reflected my own, even if her success on the highest judicial and cultural stages clearly benefitted me as a woman.

Enter Amy Coney Barrett. When she appeared in the national spotlight during her 2017 Circuit Court confirmation hearings, it was my introduction to a reality where women in the heights of the federal judiciary might truly reflect me. They might think about the law the way that I do.

Now Judge Barrett has become Justice Barrett. I watched a mother of seven give the nation a free clinic in originalism before the United States Senate, and I will never have words for what that meant. For the first time in my life, it felt like there was a seat at the table for originalist women — that there was a seat at the table for me.

Perhaps just as importantly, the mere existence of a Justice Amy Coney Barrett shatters cultural stereotypes that burdened so many originalists. Originalism is not some dying fringe philosophy of old white men. Originalism does not require a Y chromosome. I hope that Justice Barrett is just the beginning of America's introduction to a resurgent, lively, and diverse originalism.

There are women originalists. There are African American originalists. There are Asian American and Hispanic American originalists. There are LGBT originalists. There are protestant, Catholic, Muslim, Jewish and atheist originalists. There are originalists who vote for Democrats, and originalists who vote for Republicans. This is not just in some broad sense that "we are all originalists now," but in a very real and concrete sense.

In other words, there are brilliant legal minds of every race, religion, gender and sexuality who understand that the role of a judge is not to legislate from the bench. Who understand that statutes and constitutions are not the playthings of the judiciary to be arbitrarily altered, updated or modified based on personal preferences or whims.

 

The confirmation of Justice Barrett is a great moment for America, and a great moment for originalism. I suspect that there will be many more great moments for other originalists of other demographics who have long felt the same disconnect I did.

But for conservative women in the legal field, the past week was particularly and uniquely glorious. Never again will a budding originalist woman in law school look in vain to find a feminine hero who truly reflects her ideals. Never again will we feel alone or peculiar in the grand scheme of legal history. Never again will we question whether we must shove ourselves into some progressive mold in order to succeed in the legal world.

In Justice Amy Coney Barrett, we finally have a justice of our own.

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ABOUT THE WRITER

Amy Swearer is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation (heritage.org).

Distributed by Tribune Content Agency, LLC.
 

 

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