Brett Kavanaugh’s recent confirmation as a Supreme Court justice was contentious and bitter. It was a low-water mark in the process and an unhappy precedent for open vitriol and rage when we put new justices on the high court. A lot, after all, is at stake: Will women still be permitted to abort their babies? Can my state government take away my assault rifle? Will Obamacare, we find ourselves asking, remain constitutional? These are questions that are important to all of us; these are questions that need to be asked.
But they need to be asked only because we have forgotten the job of a judge.
A judge’s duty is to apply the text of some law or laws to particular “cases” and “controversies.” That is “the judicial Power” that our federal Constitution “vest[s] in one supreme Court” (Art. III, § 1). Applying the text of the law means applying the meaning that the words in the law had when passed by the legislature. This judicial philosophy, called “textualism” or “originalism,” is what was championed throughout the entire career of the late, great Supreme Court justice Antonin Scalia.
Once “orthodoxy,” textualism was demeaned as a laughable idea in the last decades of the twentieth century. Scalia was fond of saying that you could fire grapeshot over any great American law school and not hit one originalist on the faculty. Thanks, however, to his career of brilliant and tireless activity, which included three decades on the U.S. Supreme Court, textualism has been restored at least to a level of “respectability.”
But the American popular imagination has still not caught up. A majority—in fact, a growing share—of Americans report believing that “the Supreme Court should base its rulings on what the Constitution ‘means in current times.’”
You can understand the desire for laws and norms that are “relevant” to today. Making rules for society in light of popular preferences and new information is something that “we the people” better make sure happens. Scalia, for all his popular conception as a “stick in the mud,” would agree. It is one of government’s most important jobs. It is called “the legislative power” and belongs to state legislatures and Congress (Art. I, § 1). After all, we are a democracy: the members of our Congress and legislatures are people we elect.
Scalia understood this as well as anyone, which is why his go-to response to people clamoring about some hot-button issue like gay marriage or the death penalty was “Pass a law!” In one of his final major dissents, on Obergefell, Scalia eulogized the exercise of American democracy: “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote.”
That is how any healthy democracy is supposed to work. Even when we feel frustrated that a majority of voters refuse to see things our way, we have to have faith that truth, evidence, sound arguments, and persuasive advocates will prevail in the end, whether that’s the next election or several elections after that. And unresponsive representatives can be summarily punished: “You can throw the rascals out,” as Scalia once said.
Any alternative may yield a particular result, but it would be anti-democratic, probably a bad idea in the long run, and definitely un-American. In that same dissent, Scalia noted that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
It is precisely because of this respect for American democracy that Justice Scalia considered judicial activism—judges interpreting our Constitution in a “contemporary” way—so profane. He continues in that same dissent to call out the court for its “naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” Judicial activism on the high court is super-legislative because those nine “lawyers in black robes” do not just play senator for a day; they take matters beyond the reach of democracy indefinitely. Indeed, that is the whole point of getting the Supreme Court to rule categorically on a matter like the death penalty: it is one thing to eliminate the death penalty from your state, but if the Supreme Court rules the death penalty unconstitutional, that will be the end of that. Never mind that a majority (54 percent) of Americans favor the death penalty simply for conviction of murder; their opinions wouldn’t matter anymore, and neither would the process by which they are ruled.
After all, as Scalia pointed out, people who want the Constitution to be “relevant” or applicable to today apparently want “flexibility.” This is not what they get. A Constitution that creates a legislature that can pass laws to do certain things (Art. I, section 8), though may under no circumstances do certain others (the Bill of Rights), is decidedly flexible. If your fellow Americans have not seen things your way on the need to eliminate the death penalty or the need to allow abortions, then maybe you need to work harder at persuading them.
Having the Supreme Court intervene, on the other hand, in the name of a “living” or an “evolving” constitution, is hardly a path for flexibility or even change. “The function of a constitution is to rigidify, to ossify,” Scalia said. And the point of having the Supreme Court write something into our reading of it is to make some understanding permanent. It is “to frustrate the democratic will” and keep some matter from being addressed at the ballot box ever again.
In one book, A Matter of Interpretation, Justice Scalia observed that “the ‘evolving’ Constitution has imposed a vast array of new constraints—new inflexibilities—upon administrative, judicial, and legislative action.” He then lists several examples of forbidden actions: “prohibiting anonymous campaign legislature; prohibiting pornography; terminating welfare payments as soon as evidence of fraud is received . . . permitting invocation of God at public-school graduations.” Some may like that these are no longer done in America—but these results were anti-democratic.
Now, unless some justice agrees perfectly with the sense of fairness and right embodied everywhere in American law, he is going to find himself ruling in particular cases and controversies for parties he thinks are morally in the wrong. And of course cases and rulings have consequences with deep emotions embedded in them. Worst, perhaps, is when an esteemed law such as our Constitution seems unclear on a matter and a judge intuitively “discovers” that the meaning that the wise lawmakers gave the law is exactly what our judge would have considered the wise one.
But this is exactly why fair-minded, impartial judges are esteemed so highly as to be placed almost “beyond” the political process: because one man’s notion of what is right, fair, and just is nothing compared to the notions and consciences of 340 million other Americans. It is to the latter, and their elected representatives, that we give the job of making rules for everyone to live by. The only reason they are bound by the decisions of a judge is because the Constitution represents their consent to be ruled by him, not as their king but as a judge—as someone whose job description explicitly leaves out “making the rules.”
This means that we need to stop reacting to every Supreme Court decision based purely on whether we like the result. Liking Obamacare does not mean we should automatically like Sebelius or dislike any future overturning of Sebelius; the same thing goes for cases involving gay marriage, the death penalty, abortion, guns, or campaign spending. We need to assess whether a constitutional ruling is legitimate or illegitimate based on whether it is grounded in the meaning of our Constitution.
That public awareness—reading past the headline—is the price we pay for being a free people, our own rulers. Lapsing in that responsibility has a much higher price, one that includes not only judicial nominations that are as bitter and partisan as the average election—and why not?—but that also forfeits our identity as “We the People.”
Noah Diekemper studied Math at Hillsdale College and is an M.S. candidate studying Data Science at Loyola University Maryland. His work has appeared in The Federalist and the Baltimore Sun. He lives in Anne Arundel County, Maryland. Follow him on Twitter @NoahDiekemper.
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