Tuesday, September 29, 2020
Amy Coney Barrett is President Donald Trump’s latest nominee for the Supreme Court, and the scramble is already underway to read the inner workings of her mind on everything from abortion to where she sits on the spectrum from originalism to the “living Constitution.” Thanks to Pennsylvania’s Supreme Court, however, the question that should be on the top of every senator’s list is not merely how Barrett construes the Constitution, but how she reads the plain text of statutes, period. Barrett herself agrees, writing in a law review article this year that a textualist — which is how she identifies herself — “hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes.”
Acting on a September 17 petition filed by the Pennsylvania Democratic Party, the four Democrats on the state’s seven-member high court rewrote a significant portion of the state’s election law, extending the statutory deadlines for postmarked ballots. The majority did so despite acknowledging that “there is no ambiguity regarding the deadline set by the General Assembly.” Instead, the Court decided that it should be “construed liberally.”
The Pennsylvania ruling is just the first pebble of what promises to be an avalanche of similar cases. Courts have already issued similar injunctions against enforcing mail-ballot deadlines in two other 2020 battleground states, Michigan and Wisconsin. These court decisions would not be so troubling if they were outside the mainstream of the conventional liberal approach to reading the plain language of statutes. Unfortunately, they are representative.