Amy Coney Barrett will become the next Justice of the United States Supreme Court. In announcing his nomination, President Trump said she would decide cases based only on the law as written and do so wherever it may lead. It was this last bit about “wherever it may lead” that really caught my ear. If this proves true—and I believe it will—then the consequences for employment law will be profound and, to the surprise of many, will be very pro-employee.
Judge Barrett is a textualist, as was her mentor, the late Justice Scalia. Even Justice Kagan declared in 2015, at a Harvard Law School Lecture, and to much astonishment, that “we’re all textualists now.” But what is a textualist? A judge who decides cases based solely on the words of a statute. Legislative history? Just words on paper. Needed social change? Move along. Exigent circumstances compelling judicial action? Fuhgeddaboudit. (Check out Judge O’Scannlain’s excellent article in the St. John’s Law Review, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia.” (Summer 2017)
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