OPINION:
At a recent pro-choice demonstration in front of the U.S. Supreme Court building, Senate Minority Leader Chuck Schumer astonished Washington and embarrassed his Senate colleagues by yelling “I want to tell you, Justice Kavanaugh and Justice Gorsuch, you have unleashed a whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Decisions yet to be issued. Their sin? They had been appointed by Donald Trump from a list of potential nominees that the Alliance for Justice’s Nan Aron has described as including “some of the most extreme conservatives on the federal bench today.” That is enough to raise progressive hackles. But it begs the question of what the label “conservative” tells us about a particular judge’s approach to his work.
On the face of it, the nature of a federal judge’s responsibilities ought to be self-evident. While it is the job of Congress to enact laws and of presidents’ to implement them, in the words of the Supreme Court’s fourth chief justice, John Marshall, in Marbury v. Madison, it is “the duty of the judicial department to say what the law is.”
Not what a bare majority of a particular court believes it ought to be, but what it is. And lest federal judges be tempted to divert from this single duty in order to protect their jobs and pay, the U.S. Constitution provides them with two unique protections. They hold life tenure and their pay may not be reduced.
For most of our history, that is what members of that department tried to do in deciding a case: to determine what action the relevant constitutional provision or statute required. To that end, they would examine its language with care in order to determine its meaning as understood by those who enacted it, and then apply it to the relevant facts. That rather simple (and in time viewed as simplistic) approach came to a radical end in the mid-1950s following the Warren court majorities’ embrace of the Constitution as a living document without a static meaning, one they were free to update as they saw fit.
The following quotations from a Georgetown University address by perhaps its most radical member, Justice William Brennan, gives us some idea of the liberating nature of this view of our founding document: “[T]he genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Which, of course, begs the competence of life-tenured members of an elite organization, rather than elected members of Congress, to do the adapting.
In that same address, Justice Brennan also stated that “[t]he act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.” Again, what is it that qualifies a Supreme Court majority to speak for the community at large?
Although few if any of Justice Brennan’s leftward-leaning colleagues have expressed their views of the Constitution’s malleability as explicitly as he did, they tend to reflect them: the Constitution is a venerable document, but one that must be read to accommodate changing times and values — necessarily, as a majority of the Court understands them. Therefore it follows that if one wishes to know what to expect of their conservative brethren, it is that they will take a quite different approach to constitutional interpretation.
Specifically, conservative judges believe that the Constitution confers no powers to the federal government beyond those deliberately assigned to it by those who framed and amended it. Nor does it guarantee any rights beyond those that they had intended to protect. Thus in order to determine the extent of those powers and rights, in order to determine what the applicable constitutional law “is”, conservative judges find it necessary to determine what the applicable constitutional language was understood to mean by those who wrote it. And to do so, of course, a conservative judge must set aside his personal beliefs as to what the law ought to require in a particular case.
To put it another way, a conservative judge may be counted on to put politics aside when deciding a case. A proposition that would no doubt shock Mr. Schumer.
• James L. Buckley is a former U.S. senator and a retired judge on the U.S. Court of Appeals for the District of Columbia Circuit.
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