The Least Dangerous Branch

The moment Justice Ginsburg passed away, our duly elected united as one and discussed a plan going forward:

Democrats: Don’t you dare fill that seat.

Republicans: Oh we’re filling the seat, we have the votes.

Democrats: But when Scalia died you–

Republicans: Doesn’t matter. It’s all about votes.

Democrats: How about we stall the hearings and slander your nominee!

Republicans: Please, we’ll confirm our nominee so fast it’ll knock your masks off!

Democrats: HYPOCRITES!

Republicans: VOTES!

Judge Barrett needs a gallon of wine. This judicial confirmation process has turned from a C-SPAN snooze into a throat punch festival. McConnell is demanding a pre-election express lane, Democrats are threatening to pack the Court with extra seats.

Infuriating as these power plays are, they’re symptoms of a bigger problem. Imagine how quickly both parties would change rhetoric if Trump nominated a liberal: McConnell would hit the brakes and Schumer would propose a Zoom vote by the end of business.

It’s high time we recognize that this fight was never a “procedural fairness” battle over supreme court vacancies–it is an ideological war over the Supreme Court’s power.

328 million people live in the United States. Nine are entrusted with the highest law of the land. This authority, as David French writes, gives them “a potential veto over every single public action.” Ninety nine percent of their decisions are permanent. They answer to no voters and have no term limits. The only limit on these powers is their humility and self restraint.

And that’s fine . . . provided these nine people enforce the law without changing it. Our founding fathers knew that democracy would work so long as the court exercised “neither force nor will, but merely judgment.”

Today, however, the judiciary is no longer “the least dangerous” branch the founders envisioned. It’s a political “Promised Land” our leaders want to conquer. The Court’s power is seductive to the ambitious: if you get Congress to change the law, that’s a legislative victory, but if the Supreme Court mandates this change under the Constitution, that makes your victory immune from legislative correction.

Part of this is stems from our broken Congress, which French describes succinctly: the “geographic sorting and ideological clustering” of our congressional districts has made politicians indifferent to anyone outside their base.  Thus, “if you write to your member of Congress . . . she is free to completely ignore your correspondence . . . . [I]f you file a lawsuit, however, the judge has to respond.”

But the reason so many are using the Supreme Court to change public policy is because the Supreme Court has a history of doing exactly that.

Over the last two Centuries, the Court steadily expanded it’s job description by revising the Constitution’s meaning when the the original meaning became inconvenient. Judges hoped this would make the Constitution more practical. But instead, they made democracy less meaningful. By stretching the Constitution to enforce their own policy notions of fairness, they ignored the American principle that “policy fairness” is a legislative pursuit.

As a result, some of our most profound moral debates are not explored in spacious legislative arenas, but instead are bottlenecked in lawsuits and judicial vacancy fights. Roe v. Wade is the most famous example–and remains a key issue in Judge Barrett’s confirmation hearing. In that case, the Supreme Court struck down abortion bans under the 14th Amendment, which provides that no State shall deprive any person of life, liberty, or property without due process of law.” The Supreme Court reasoned that the freedom to terminate a pregnancy was so fundamental, no “due process” could justify restricting it in the first trimester.

When Senators talk about Roe v. Wade, they usually focus on whether it will be overturned. That question matters to many of us, and rightly so.

But given the Supreme Court’s future as an institution, one must also answer another question: how Roe was decided. Did the Court rely on what the 14th Amendment actually means, or what they thought it should mean? This question distinguishes a judge who follows the law from a politician who changes it, and that distinction should matter to anyone who embraces the separation of powers.

Roe v. Wade is a story about how the Supreme Court erased this distinction, and a lesson on why the Court’s original design still matters.

The Court’s Design

Alexander Hamilton co-authored the Supreme Court playbook in the Federalist Papers. In those essays, he argued that high court judges needed lifetime tenure and election immunity for at least two reasons. The first was neutrality; if a judge had an election on his mind, that would improperly influence how he decided the case. The second was experience; the longer the judge was on the bench, the more our judiciary could benefit from his wisdom.

Some people were nervous that judges would exploit these job perks by construing laws “according to the spirit of the Constitution,” and “[mold] them into whatever shape it may think proper” without consent of the people. What they were talking about was “purposivism,” the interpretive approach in which the judge interprets the law not according to what it says, but instead on what purpose the law serves.

Their concerns were valid, because this judicial approach, though seemingly pragmatic, invites subjectivity. If a law serves many purposes, which one should the judge prioritize? At that point, the law changes according to which purpose the judge values most. So by applying this approach, the judge is changing the law without input from the legislature.

To calm these fears, Hamilton did not defend this purpose-based approach. He reassured that no judge would use it. Federalist 81. This is why Hamilton saw the judiciary as the “least dangerous” branch, driven by neither force nor will, but merely judgment. Federalist 78.

The founders shared this view, particularly James Madison. He despised the idea of a judge interpreting old language in the “modern sense,” because that would create a “metamorphosis” in law. To maintain a “consistent” and “stable government,” he argued, courts must “resort to the sense in which the Constitution was accepted and ratified.” George Washington agreed, stressing that ignoring text to achieve desirable results “may be the instrument of good” in one instance, but in the long run, it becomes the “customary weapon by which free governments are destroyed.”

None of these remarks should surprise anyone. Our nation fought a war over the right to self govern, which demands accountability. The last thing our founders would have done was relinquish this power to an unaccountable group of judges.

As time went on, however, unaccountable judges began experimenting with the legislature’s power. They inserted new meaning into the Constitution’s text in order to produce desirable outcomes, and defended this practice on the basis that these outcomes served the purpose (ie the “spirit”) of the Constitution itself.

New and Improved “Substantive” Due Process

In 1899, a bakery owner named Joseph Lochner was charged with violating the Bakershop Act, which prohibited his employees from working more more than 10 hours per day or 60 hours per week.  This law’s purpose was to prevent employees from being overworked.

Lochner appealed his case, claiming the law violated his economic freedom under the 14th Amendment, which prohibits any State from depriving any person of liberty “without due process of law.” The majority ruled in his favor. They concluded that the Bakershop Act lacked “due process” because in their view, its health and safety benefits did not justify the restrictions.

The problem, however, was that “due process” was not a license for judges to weigh the pros and cons of the challenged law. Rather, it primarily referred to the legal procedures afforded to a person, such as a trial or an administrative hearing, so the law would be enforced consistently.

Due process also prohibited laws that were plainly and inherently arbitrary, meaning that they had no plausible justification at all. But as Justice Holmes argued in his dissent, this was not the basis for the Lochner majority’s decision. Their decision, rather, was based on their economic theory that the law’s justification was inadequate.

Holmes was right, the majority’s reasoning had twisted the meaning of “due process” so that was no longer a shield against the arbitrary enforcement, but rather sword for attacking disagreeable laws. This became known as “substantive due process,” where by a law required a substantive justification in the eyes of the courts.

Constitutional Rights: Written and Added

By the 1950s and 60s, the Supreme Court had expanded its influence in the area of personal liberty. It did so by creating new categories of rights that were never specified in the Constitution, and raising the level of scrutiny whenever the States infringed on these rights.

In Griswold v. Connecticut, a plaintiff challenged the State’s contraceptive ban, which violated their privacy. The Constitution says nothing about “the general right to privacy,” yet Justice Douglas believed the court could “infer” this unwritten right in part because the 9th Amendment provides that the Constitution’s “enumeration . . . of certain rights shall not be construed to deny or disparage others retained by the people.”

This Amendment’s message was don’t assume rejection by omission. But that did not mean the Court had discretion to create new rights; if anything, the 10th Amendment gave that discretion to “the States or the people.”

With this self-bestowed discretion, Douglass created a constitutional right to privacy by duct-taping several inferences together. He noted that the Bill of Rights protects certain forms of privacy: the First Amendment guarantees the freedom of association; the Third Amendment protects citizens from being forced to quarter federal soldiers; the 4th Amendment prevents unreasonable searches and seizures; and the 5th Amendment secures the privilege against self-incrimination. Douglas concluded that these varying “zones of privacy” were the Constitution’s way of implying a general right to privacy.

In the years before Griswold, the Court had also enshrined other personal liberties outside the Constitution’s text when they felt those liberties were “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.” These special liberties were known as “fundamental rights,” which the State could not restrict unless the Court believed the restrictions were “narrowly tailored” to serve a “compelling state interest.”

Now admittedly, many reasonable people would shrug their shoulders at these developments. What’s wrong with creating a general right to privacy? Doesn’t it make sense to change the law so it’s workable and realistic?

Of course. Hardly anyone wants to bring back contraception bans or old stuffy restrictions. But the central question is not whether changing the law is right or wrong, but rather who should make those changes in a representative democracy.

The answer is not judges. To see why, look at the Court’s fundamental rights criteria and consider the expertise it requires:

• Which freedoms are “deeply rooted in history”?
• What does it mean to be “implicit in the concept of liberty”?
• And of all the freedoms not mentioned in the Constitution, which ones are so important that no “compelling State interest” could justify their restriction?

The first question is suited for a historian; the second one needs a philosopher; and the third goes beyond the study of law and potentially covers the study of medicine, biology, chemistry, philosophy, psychology, psychiatry, social science, political science, environmental science, economics, statistics, anthropology, and finance.

Law school teaches none of these topics. Lawyers master none of these topics. And while judges may dabble in these topics case to case, their education is limited to whatever resources the litigants provide them.

Finally, the biggest problem with the Court discerning new rights under this flexible criteria is subjectivity. No one, not even judges, can compare the importance of an asserted freedom to the necessity of a state restriction without consulting their own moral and political philosophy. Indeed, moral and political philosophy is the study of how we should reconcile competing freedoms and interests in a civilized society.

In America, this task belongs to “We the People” though our legislature, which channels a full spectrum of views and remains accountable by our votes. But each time the Court reads another right into the Constitution, it hijacks another the legislative debate, thereby becoming less distinguishable from the legislative branch.

Soon enough, the Court’s legislative self-confidence escalated to the point where the Court ventured into the most controversial moral debate in living memory: Roe v. Wade.

Cancelling without Settling the Greatest Moral Debate

In Roe v. Wade, a woman challenged a Texas law that prohibited abortions except when they were necessary to save the mother’s life. One of the deciding questions was whether this restriction deprived her of liberty without due process of law under the 14th Amendment. In other words, did abortion access qualify as a “fundamental right”? And if so, did the Texas restriction serve a “compelling state interests”?

To prove that abortion practices were “deeply rooted” in history, Blackmun travelled far back in history. He cited abortion’s acceptability in ancient Rome and Greece. He also pressed the fact that although the majority of states restricted abortions, these restrictions had been around for “only” 100+ years. Relying on his own historical perspectives, as well as the broad zone-of-privacy rationale in Griswold, Justice Blackmun determined that abortion was a fundamental right under the 14th Amendment.

But then Blackmun had to confront the State’s interest: protecting the life of the unborn. Although he acknowledged that this interest may be “compelling” in the late stages of pregnancy, Blackmun emphasized that whether life begins in the earlier trimesters is largely unsettled.

Settled or not, that question was pivotal to the compelling interest analysis: if dignified human life does not exist until birth, that would logically make abortion restrictions pointless and deplorable; but if a dignified human life exists at conception, then abortion constitutes the unjustified killing of a human being.

Justice Blackmun did not have an answer, yet he reasoned that because of the unsettled debate, the theory of when life begins is not something the State can use to interfere with first-trimester abortion restriction. He thus concluded the State did not have a compelling interest to justify a first-trimester abortion restriction.

Notably, Blackmun’s comment that the State cannot enforce a “theory” of when life begins raises a peculiar irony. Earlier, Blackmun cited Justice Holmes’ dissent in Lochner v. New York as a way of promising readers he’d restrain his policy views. But in that same dissent, Holmes emphasized that judges are the ones who shouldn’t choose their favorite theories. Blackmun did exactly that. By concluding the State had no compelling interest in protecting the unborn during the first trimester, he accepted his conclusion’s underlying (and subjective) moral premise–that the unborn were not worth protecting during the first trimester. This is what judicial legislation looks like.

The Aftermath

By invalidating abortion laws in the majority of states, Roe forced the issue onto the national stage, and triggered decades of controversy and polarization. In the late 1980s, this division made its way to judicial confirmation proceedings. For most of the 20th Century, judicial candidates were evaluated primarily on qualifications. But when President Regan nominated Judge Robert Bork for a Supreme Court vacancy in 1987, Senators Joe Biden and Ted Kennedy turned this glorified job interview into a political fracas.

Bork was an originalist: he believed judges should interpret the Constitution according to what its language meant at the time it was written (precisely the same view held by Hamilton and Madison). Democrats wanted judges to treat the Constitution as a “living document,” whose textual meaning could change according to modern needs and attitudes. Social liberals celebrate “living constitutionalism” in part because it made Roe v. Wade possible.

When Regan nominated Bork, four of the Supreme Court justices seemed primed to overturn Roe–only one more vote to go.

Biden and Kennedy went haywire. They mobilized law professors to sign petitions and unleashed speeches of a Bork regime that would create a world of “back alley abortions” and “slam the federal courts’ doors on the fingers of millions of Americans for whom the court is their only savior.” And it worked–they had the votes. Out went Bork and in came Anthony Kennedy who would ultimately save the core Roe holding in Casey v. Planned Parenthood.

Fast-forward 27 years and we’re still having the same fight. Democrats are sounding the Ted Kennedy sirens that Judge Barrett may ruin their policy victories by overturning Roe v. Wade (along with the ACA decision). And of course, many Republicans are supporting her confirmation for this same reason.

These fights are not only contaminating our confirmation hearings, but also re-shaping elections. In 2016, 40% of voters saw abortion as “very important” to their votes, and Trump campaigned on a promise to pick conservative judges. This may very well have helped him win. With Scalia gone, a left-ward shift in the Court would not only cement but expand the Roe holding in future cases. Similarly, many Democrats are campaigning on their promises to oppose Barrett’s confirmation and pack the court with extra seats to off-set its conservative majority.

This political mess over the Supreme Court calls to mind a phenomenon with rookie airplane pilots. When they lose visibility in thick cloud cover, they’ll check their gauges and the artificial horizon. The readings are fine. But when they feel something’s off, they no longer trust the readings. So they make adjustments, little by little. By the time they emerge from the clouds, their planes are upside down.

Article III of the Constitution gave the Court straightforward instructions: follow the law. But when confronted with unpopular laws like the Bakershop Act in Lochner, or the contraceptive ban in Griswold, the Court felt something was off with the letter of the law, and seemingly couldn’t trust democracy to run its course. So little by little, they adjusted the Constitution to improve case outcomes. But these series of adjustments eventually transformed the Court from “the least dangerous” branch to a political powerhouse.

The Solution

In her opening statement, Judge Barrett reminded us that the Constitution was not meant to “right every wrong” in our society. Our representative democracy only works when the power to change laws is left to the legislature.

So how to we make this work? How do we de-politicize the Supreme Court?

I have heard many people talk about court-packing, term limits, and other proposals for making the court “politically balanced.” But the Supreme Court was never supposed to be politically “balanced,” it was meant to be politically detached.

The best way to detach the Supreme Court from politics is by embracing originalism and textualism as the Court’s method to interpreting the law. Originalism and textualism are designed to weed out personal politics. Under this approach, a judge focuses on the law’s structure and plain language. To determine what the law requires, a textualist examines what the text means or fairly conveys. When it comes to the Constitution, an originalist examines what the text meant or fairly conveyed at the time it was written. While this can often be complicated–as it requires a thorough understanding of history–it’s the most objective.

Why go back to the time it was written? Because laws consist of words, and what those law say depends entirely on what their words mean. So when a law is written, its meaning is fixed and endures until the legislature changes it.

That does not mean the Constitution is inflexible. Our Constitution was meant to be applied to new circumstances and technologies. For instance, while social media did not exist when the First Amendment was drafted, the original meaning of “speech” encompasses all expressions of views and ideas. Today, that original meaning naturally includes Facebook posts (and wordy blog ramblings like this one).

I’ve heard critics say that originalism and textualism are always just conservative agendas in disguise. Not so. “Conservative” Scalia used originalism to protect a defendant’s right to confront witnesses.  “Conservative” Gorsuch followed his textualist instinct to conclude that treating an employee differently for being in a same sex relationship was a Civil Rights violation.

Many have also argued that treating the Constitution a living document has produced great results. But by prizing the results over the democratic process, this argument against originalism is really an argument against democracy.

This argument has another problem. For anyone on the losing side of a living constitutionalist decision, the “bad” results are catastrophic. Imagine if five justices feel skeptical of global warming and use their broad “substantive” due process powers to declare carbon emission regulations unconstitutional under the 14th Amendment. Or suppose they want to legalize drug use across the country because they personally think it’s “deeply ingrained in our Nation’s history and tradition”–which is technically true–and “implicit in the concept of liberty.” To anyone concerned about crime, health, and global warming, your last line of defense is originalism, which instructs these judges to leave their personal beliefs out of this. Otherwise, these political decisions will be immune to legislative change.

This is precisely why Judge Barret is a good choice. On top of being supremely qualified and well respected, she embraces originalism and textualism, and has a track record to show it. With more judges like her on the bench, the supreme court can return to its rightful place as “the least dangerous branch,” allowing our country to evolve the way it was supposed to: as a democracy.

https://www.wsj.com/articles/why-we-fight-so-ferociously-over-the-supreme-court-11601045891