Representative Laurel Lee (R-FL) fiercely fought back against critics of Supreme Court justices who practice judicial originalism in a recent House Judiciary Committee hearing.
Speaking as a former judge, Rep. Lee noted that the Supreme Court's legitimacy "does not depend on whether people agree with every decision. It depends on whether judges interpret and apply the law independently without political intimidation, threats to their safety, or pressure to deliver preferred opinions."
The Florida lawmaker noted that plans to "pack the court" have been touted among some lawmakers to get preferred legal outcomes, along with "criticisms of judicial philosophies like originalism simply because some disagree with outcomes in particular cases."
She added, "An independent judiciary cannot function if judges are treated like politicians whenever they issue an unpopular opinion."
The Florida congresswoman asked hearing witness Gene Schaerr why originalism is being treated as a "political project to achieve conservative outcomes" when it is actually "about judicial restraint requiring judges to interpret the Constitution as written, as opposed to applying their personal preferences."
Schaerr cited his own experience working with the late Justice Antonin Scalia, where the first judicial opinion Schaerr helped Scalia write was in favor of a liberal interpretation of a Fourth Amendment objection to the admission of specific evidence in a trial "because [Scalia] felt that is what the Constitution required," only to be blasted for it.
"That is the hallmark of a good judge," Schaerr commented. "Is he or she willing to follow the law as written, even if it leads to places that the judge disagrees with as a policy matter?"
Lee agreed wholeheartedly, questioning, "why it is so important that our judges are able to make that distinction and apply the law as it is written. Is that part of our very system, as we would learn in eighth-grade American history, of checks and balances?"
Schaerr called it "an essential part of our system."
The really nice thing about the US Constitution is that if you don’t like it, there is a way to amend it. Lee is so right here. When a justice follows what is plainly written in the law as it would have been interpreted at the time, the Court does its job and does not do the job of the Legislature. When the Court tries to legislate from the bench, it jeopardizes the Constitution’s checks and balances. We need a strong Court to protect our fundamental rights. We wrote those fundamental rights down as Amendments to the Constitution. If we want more fundamental rights, we need to have a super majority of people agree on these fundamental rights changes and go through the process of amending the Constitution. We have amended the Constitution before. If we think times have changed so much, we really should update the Constitution, the right way, the way our forefathers intended with an official Constitutional Amendment.