It's been over a month since I posted anything. Partly this results from a general ennui with the whole blogging scene. After all, who (besides me, of course) really cares what I think? Partly, it is due to a sense that there is nothing much "new" going on. There's lot's of stuff out there I do and don't like, but it's all the
same stuff over and over again. On most of these issues, I have already said what I have to say, and I see little utility is saying the same things over and over again. But partly it is also because I have been struggling (off and on) to try to crystallize my own thinking on one issue that has received an enormous amount of press in the last several weeks: the issue of "judicial activism."
The role of the judiciary and its relationship to both politics and the (avowedly) political branches have long intrigued me, both personally and professionally. But, I got started thinking more concretely about it after reading a transcript of a speech Justice Scalia delivered several weeks ago (
linked here). It is a compelling speech and very difficult to dismiss out of hand. Yet, I do not agree with him. So I started to try to write a rebuttal. However, with the Schaivo case and the reaction to it by people like
Tom DeLay and
John Cornyn, there has been so much in the news about this issue recently that grist has been being added to the mill faster than I can grind it. The most recent (and most disturbing) of these was this from last Friday's NY Times:
Frist Set to Use Religious Stage on Judicial Issue. Apparently, Senate Majority Leader Bill Frist has decided that separating religion and politics means so little to him that he is prepared to participate in a telecast "portraying Democrats as 'against people of faith' for blocking President Bush's [judicial] nominees."
Before getting too far down that road, though, I want to start with someone who actually is worth listening to, even if you disagree with him: Justice Scalia.
Scalia argues (both in his speech and his writings) in favor of an "originalist" approach to Constitutional interpretation. His thesis is fairly straightforward: a Constitutional provision should be given the meaning it had at the time that provision was adopted. If that meaning is no longer consistent with new or emerging societal values, the solution is not to "re-interpret" the Constitution but to amend it. Thus, for instance, Scalia argues that a particular punishment cannot be considered "cruel and unusual" under the Eighth Amendment unless one can conclude that the punishment would have been generally considered to be "cruel and unusual" at the time the Eighth Amendment was adopted (i.e. 200+ years ago).
To critics who point out that "things have to change" at some point, Scalia responds, "I agree!." But, he argues, the right way to change things is not to give the existing language new meaning but to change the language itself via the amendment process. This, after all, is how we got a ban on indentured servitude (slavery), women's suffrage, income tax, direct election of Senators, a ban on third terms by Presidents, etc., etc. To those who argue that the Constitution should be flexible, he responds, "No it should not!". The purpose of a Constitution is to make parts of the Nation's laws very, very hard to change. The purpose of a Constitution, in fact, is rigidity, not flexibility.
It should be noted that there are many who argue that Scalia himself is an "originalist" only when originalism results in an outcome he likes. See, e.g. "
Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too." And, there is probably considerable justice in this criticism, since it is very difficult for anyone to always be true to his or her principles no matter how deeply held they may be. But, whether Scalia himself always does what he says he should do is not really the point. The larger question is whether he is right in principle. That is, is originalism the goal to which judges
should aspire, even if they fall short of that principle in particular cases?
Scalia advances a number of historical and practical arguments to support this approach, but the most compelling is this:
The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to nineteen years ago now, by a vote of ninety-eight to nothing. . . . Today, barely twenty years later, it is difficult to get someone confirmed to [even to] the Court of Appeals [, much less to the Supreme Court]. What has happened? The American people have figured out what is going on. If . . . we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If, on the other hand, we're picking people to draw a new Constitution out of their own conscience and experience, with all sorts of new values to govern our society, then we . . . should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right, and the other right. We want to pick people that would write the new Constitution that we would want. . . . When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a Constitution that the majority wants.
And that, of course, deprives the Constitution of its principal utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two-hundred years.
Its' a seductive argument, isn't it? However, I think there are three problems.
The first of these is practical: why is it we assume that the provisions of the Constitution had a single universally accepted "meaning" at the time the language was drafted and adopted?. The Constitution is written in broad, sweeping terms: "due process of law," "equal protection of the law", "cruel and unusual punishment," "freedom of contract", "full faith and credit," "freedom of speech," "free exercise of religion," "establishment of religion," "unreasonable search and seizure," etc. etc. On their face, such phrases are susceptible to widely differing interpretations. When legislative bodies use or approve such language (as they did in adopting these provisions into the Constitution) it is frequently the case (perhaps even always the case) that they do so precisely because they could not agree on any more particular formulation. That is, the meaning of, say, "equal protection of the law" may well have been as ambiguous to the drafters as it is to us. If this is the case, then how is an "originalist" to decide what the original intent was? Moreover, if you make the contrary assumption, i.e. that there was a single, commonly understood meaning at the time of adoption, you have to ask why no more specific language was used. For instance, if the Eighth Amendment ban on cruel and unusual punishment was intended to outlaw only those punishments deemed cruel and unusual at the time of adoption, then why not simply say that? In short, the very fact that the adopters used such vague language strongly suggests either that: (a) that there was no consensus on what the provision meant at the time it was adopted, or (more likely, I think) (b) that the legislators chose the general rather than the specific precisely because they recognized that views on this subject could change over time. In either event, the vagueness of the language used poses a significant problem for someone trying to take an "originalist" approach.
A second problem with originalism is conceptual. Scalia argues, quite rightly, that the Constitution is there to defend minorities from the tyranny of majorities. But, what he does not recognize (explicitly, at least) is that the Constitution is itself the very epitome of majoritarian will. Enacting or amending the Constitution is the most difficult of all political acts. It requires the agreement of two-thirds of the members of each House of Congress and then the ratification by three-quarters of the States. I agree with Scalia that the Supreme Court's most important function is "to tell the majority to take a walk." But, under an originalist approach, this can happen only when the current legislative majority seeks to do something that some previous super majority explicitly considered to be beyond the pale. It is hard to see how this approach is any check on the tyranny of majorities.
The third problem is logical. The originalist thesis argues that the goal of a judicial act is to simply divine the intent of the adopters and that a judge should not consider his or her own views and values in making a decision. But the very first decision a judge must make is to decide whether or not be an originalist. How is that decision made? To be logically consistent, the originalist must find some basis in the Constitution itself for adopting the originalist approach. Otherwise, he or she would be making the most important of all decisions based on exactly those factors -- his or her own sense of what is "right" or what "should be" -- that originalism condemns as a basis of decision. But, the Constitution itself is entirely silent on this issue. Indeed, Scalia himself points to nothing in the Constitution that mandates an originalist approach. Rather, he makes a purely normative argument that departure from originalism poses a threat to the Constitution itself. Perhaps he's right. Perhaps we should use an originalist approach and rely exclusively on the amendment process to make changes. But it needs to be recognized that this argument is based, not on the Constitution itself, but on the originalists' view of how things ought to be. If it is acceptable to base the whole question of how to approach interpretation and decision on a personal conception of how things should be, then why is it wrong to allow such considerations to intrude in the decisionmaking process itself?
In point of fact, while the Constitution does not speak explicitly to this issue, there is much in its structure and in the legal context from which it arose to suggest that judges were
intended to bring their own values and views to bear on decisions. First, the Constitution came out of a common law tradition. In that tradition, much of the law was created by judges. For instance, there is an accepted principle in contract law that a person who breaches a contract is not liable for so-called "consequential damages" i.e damages that result from the breach that the breacher could not have reasonably foreseen. Thus, if Federal Express breaches its promise to me to deliver a package the next business day, and, as a result, I lose some benefit (say, I am too late for my bid on a government contract to be considered) Federal Express is not liable for the profits I would have made on the contract had my bid been timely delivered. Where did that rule come from? From an old English case called
Hadley v. Baxendale. It is, in short, a judge-made rule. American law is shot full of these type of rules. Indeed, most of the law of torts (e.g. negligence, products liability, etc.) and property was originally judge-made law, although much of that law has now been codified into statutes. Today, of course, most law is made by legislatures and administrative agencies, and there is far less of a role for judges to make new law with respect to issues that arise in everyday life. However, that was not the case in 1789. At that point, judges and courts were as much or more a part of the law-making process as were legislatures, and administrative agencies didn't even exist. Given this context, it is hard to imagine that the drafters would have intended to preclude judges from "making law" with respect to the extraordinarily broad (and vague) provisions of they chose to use in the Constitution.
The structure of the Constitution also tends to support the argument that the judiciary was never intended to be wholly separated from the political process. Article III of the Constitution says, simply, that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. " The remainder of the Article is devoted primarily to organization and to the types of cases within their jurisdiction. Primary among these types of cases are cases arising under the Constitution. And, while the full scope of the phrase "judicial power of the United States" is not something I am prepared to explore, no one disputes Justice Marshall's holding, in
Marbury v Madison, that: "It is emphatically the province and duty of the judicial department to say what the law is."
Obviously, the fact that the courts have the power (and duty) to say what the law is does not answer the question of what criteria the may consider in making that decision. And, this, after all is the nub of the "originalism" vs. "activism" argument. Should a judge allow his or her own normative views on what the law should be influence his or her decision on what the law is?
The most common argument against the interjection of a judge's own view on a case is that judges are not elected and are therefore not responsible to the people. With all due respect that is a red-herring. True, judges are not
directly elected, but then, neither is the President. The President is actually elected via the electoral college. Indeed, until the enactment of the 17th Amendment in 1913, Senators were not directly elected either, but were instead elected by state legislatures. In short -- of the four types of federal officials contemplated by the Constitution -- Representatives, Senators, the President, and the Supreme Court Justices -- only one group, the Representatives, were directly elected. Yet, clearly, the Constitution does not and has never been interpreted as precluding Presidents and Senators from interjecting their personal views in their decisions. Why then do we assume that the intent was to preclude judges from doing likewise? Whatever the reason for this belief it finds no support in the fact that judges are not directly elected.
In sum, I can find nothing in either the Constitution or in its history to demonstrate that the original intent of the drafters was to preclude judges from considering their own personal views on what the Constitution
should mean. In fact, what evidence there is suggests that the opposite may well have been true. However, it at least seems clear that the approach judges should take in interpreting the Constitution is an open question that can only be answered by reference to our own perception as to what should be.
Which brings us back to Scalia's argument that allowing judges to interject their own values into decisions poses a threat to the Constitution itself. In effect, he argues that, if the Constitution means whatever the judge says it does, then, in the end, it means nothing at all -- or at best will mean whatever the majority thinks it should mean. Further, the process of appointing judges will descend, as it has, into a process of finding judges who agree with us, rather than looking for good legal scholars.
It's not so bad as all that, Antonin. No one is suggesting that judges should be free to give the Constitution any meaning whatsoever. One does not need to insist on originalism to avoid that outcome, for there are enormous constraints on judges. These constraints are less for the Supreme Court than for lower courts, of course, since there is no appellate review of the Supreme Court decisions. But, even here, there are significant constraints.
By far the most important of these is the fact that any decision of the Supreme Court requires that at least 5 of the 9 Justices agree with the outcome. Given that these Justices are appointed and confirmed by Presdients and Senates of ever changing political composition, that alone is a significant constraint. In addition, Courts are constrained by precedent. Obviously, this is not an insurmountable constraint, since the Court can and does overrule itself from time to time. Yet it is silly to suggest that precedent is not an important constraint. If it were not, it seems doubtful that
Roe v. Wade would still be the law of the land. A third constraint is an acute awareness by the Justices of the limitations on the Court's power. Stalin's famous question regarding the Pope --"How many divisions has the Pope?" -- applies in spades to the Supreme Court. The Court itself has no power to enforce it's decisions. It is entirely dependent in this regard on the willingness of the Executive to defer to those decisions. Especially today, the extent to which the Court can count on that deference is a very real constraint on how far the court can go. And, finally, and perhaps most important, the Justices are constrained by their own consciences. Free as they are from the need to run for re-election or to campaign for re-appointment, federal judges are uniquely able to try to "do the right thing". Different judges will have very different ideas as to what the "right thing" is. Yet, in the end, the range of those differences are actually pretty narrow.
The net effect of all of these constraints is that Constitutional law evolves very slowly and each evolution is actually built upon and derivative of what has come before. If you don't believe me, read
Roe v. Wade.
This is getting terribly long-winded, so let me jump to what I see as the bottom line. Judicial decisionmaking is inevitably political to some extent. The extent is limited by all of the constraints discussed above, but in the end it is impossible for any judge, even the most deeply committed "originalist," to entirely separate his own feelings and beliefs from the process of decision. Moreover, I believe that this is a fact we should embrace rather than condemn. We should not want -- as Scalia does -- Supreme Court Justices who are simply "good lawyers", able to discern what was meant by the people who drafted a particular legal writing. That skill is clearly necessary. But it is not sufficient. What we also need are judges who have vision, intelligence and a willingness to lead to Country to places where the Country itself might not be prepared to go. (Take, for instance,
Brown v. Board of Education) . We should, in short, see Article III of the Constitution as creating a third
political branch of the government. Just as are the other two branches, the political power of the Judicial Branch is subject to a large number of checks and balances (and other implicit constraints). Yet, it is nonetheless a branch invested with political power and we should expect the Court, no less than the President or Congress, to exercise that power for what they believe is the greater good of the Country. To the extent we believe that the direction the Court is moving us is not the direction we want to go, our remedy is to appoint, through our elected officials, new judges.
I believe, in short, that the appointment process Scalia so abhors, where Senators question the beliefs of the Justices that come before them for confirmation, is not evidence that the system is broken. In fact, it is evidence that it is functioning just as it should. The job of people like me (who do not like the values that the current President and Senators are injecting into this process) is not to claim that they should ignore those views and look only at legal credentials. My job, if that is how I feel, is to elect a different President and Senators.
