WASHINGTON, D.C. — Conservatives in favor of Amy Coney Barrett's ascension to the Supreme Court describe her as an originalist, like the late Justice Antonin Scalia who Barrett clerked for in the 1990s. Some say Democrats are too concerned with promoting activist judges.
Louisiana State University law professor Ken Levy believes there's just as much judicial activism on the right.
"This notion that any judge, including Judge Barrett, is just going to sit on the court and just look at the meaning of words is a fantasy. It won’t happen. It’s never happened," he said.
Originalism is often defined as a principle of judicial philosophy focused on consulting historical sources to get in the minds of the founders. Textualism, also touted by Barrett, is viewed as the literal interpretation of the Constitution. Levy argues that nowhere in the Constitution does it suggest textualism or originalism should be applied as interpretive devices by justices on the high court, and he thinks the founders themselves knew society would evolve.
"Way back when the Constitution was written, it was pretty much written for and by White male property owners. They had principles in there that over time were stretched to include non-White people, women, certainly more than property owners. That's what equality is all about. There's an equality principle in the 14th Amendment," said Levy.
The law professor instead champions the notion of principled pragmatism, using the Constitution as a guide while applying it to today's realities. He says breathing life into the Constitution made the landmark school desegregation decision Brown v. Board of Education possible.
"The courts at their best, including the Supreme Court, have expanded their interpretation of various constitutional provisions," he said.