Liberalism and Judicial Philosophy
The Supreme Court nomination process always seems to focus primarily on the issue of abortion, and I suppose that's understandable given how strongly people feel about the issue. But it's also a shame, because no other issue does more to obscure the difference between judicial and political reasoning or to lend credence to the questionable judicial philosophies of the Thomases and Scalias of the world.
For those who strongly believe in abortion rights, the imperative of keeping abortion legal all too often forces them into an intellectual corner. They assume that because there is a such a strong policy argument for keeping abortion legal, there must be an equally compelling constitutional argument. The lines between legal reasoning and political reasoning become blurred, and any judicial philosophies that are found to be inconsistent with Roe v. Wade are ipso facto unacceptable. But this is exactly the type of lazy reasoning that true liberals need to avoid.
The fact is that Roe v. Wade was the product of a type of legal reasoning that was common among judges at the time, but is considerably less common now, even among liberal legal scholars. The "constitutional perfectionists" (to borrow Cass Sunstein's term) who controlled the Warren Court believed in interpreting the language of the Constitution expansively, with an eye toward furthering democratic ideals. Roe is the quintessential example of such reasoning. But in the decades since Roe, that type of judicial philosophy has fallen out of favor. Though there are still some holdouts in legal academia, constitutional perfectionists have become virtually extinct in the federal judiciary. Indeed, there is not even a single Justice on the current Supreme Court who subscribes to this philosophy (Stevens and Breyer come the closest, but they're still far from being Brennan, Marshall, or Douglas). The "liberals" on the Court now are generally minimalists. They are more than willing to let Roe stand, but it is very unlikely that they would have authored (or perhaps even signed on to) such an opinion in the first place.
Therefore, a nominee's opinion as to whether Roe was correctly decided is virtually meaningless. It's certainly no indicator of how "liberal" the nominee is. Ruth Bader Ginsburg has been quoted as saying that she thought Roe was a questionable decision. Simply put, what a nominee thinks about Roe says virtually nothing about how that person will rule on any other issue.
Liberals, therefore, should not let the Supreme Court nomination process focus on Roe. We should instead focus on what a nominee thinks about the importance of legal precedent. Is the nominee the kind of person who respects precedent and understands the real world consequences of overturning well-established law? Or is he the kind of person who allows ideology to blind him to such consequences.
Liberals should also focus on highlighting the inconsistency and consequences-be-damned recklessness of originalist thinking. For instance, even the most devout originalists, such as Justice Thomas, often fail to follow their own philosophy. Affirmative action is a good example of this inconsistency. There is a veritable mountain of historical evidence that the drafters of the 14th amendment did not intend to outlaw affirmative action. Indeed, the very people who drafted the amendment simultaneously created the Freedmen's Bureau, a massive government agency devoted solely to large scale affirmative action initiatives. Thomas nevertheless insists that affirmative action violates the 14th amendment. Similarly, both Scalia and Thomas have decided cases based solely on unwritten "principles of federalism" that are somehow implied by the structure of the Constitution. These principles, however, are just as illusive as the infamous "right to privacy" that originalists are so quick to condemn.
Pointing out hypocrisy only gets you so far, though. Liberals must also point out the extent to which originalism is incompatible with our modern laws and institutions. For instance, people must be told that under Thomas's originalist interpretation of the Establishment Clause, the separation of church and state that we take for granted would only apply to the Federal government. States would be free to found churches or build monuments to Jesus in the public square. On a more fundamental level, originalist thinking puts much of our modern administrative state in jeopardy, including virtually all important regulations governing the environment, public safety, working conditions, etc.
With so many important things to talk about, it's a pity we always focus on the one that's the least illuminating.
Disclaimer: On the off chance that I ever find myself before the Senate Judicial Committee, and some Senator gets his/her hands on this post, let me state for the record that while I think Roe is a questionable decision by modern judicial standards, I do not think it should be overruled. It's been the law for so long now that it would be far too disruptive to overturn it. It would be far preferable to leave the decision on the books, particularly considering how strong the policy grounds are for keeping abortion legal.
For those who strongly believe in abortion rights, the imperative of keeping abortion legal all too often forces them into an intellectual corner. They assume that because there is a such a strong policy argument for keeping abortion legal, there must be an equally compelling constitutional argument. The lines between legal reasoning and political reasoning become blurred, and any judicial philosophies that are found to be inconsistent with Roe v. Wade are ipso facto unacceptable. But this is exactly the type of lazy reasoning that true liberals need to avoid.
The fact is that Roe v. Wade was the product of a type of legal reasoning that was common among judges at the time, but is considerably less common now, even among liberal legal scholars. The "constitutional perfectionists" (to borrow Cass Sunstein's term) who controlled the Warren Court believed in interpreting the language of the Constitution expansively, with an eye toward furthering democratic ideals. Roe is the quintessential example of such reasoning. But in the decades since Roe, that type of judicial philosophy has fallen out of favor. Though there are still some holdouts in legal academia, constitutional perfectionists have become virtually extinct in the federal judiciary. Indeed, there is not even a single Justice on the current Supreme Court who subscribes to this philosophy (Stevens and Breyer come the closest, but they're still far from being Brennan, Marshall, or Douglas). The "liberals" on the Court now are generally minimalists. They are more than willing to let Roe stand, but it is very unlikely that they would have authored (or perhaps even signed on to) such an opinion in the first place.
Therefore, a nominee's opinion as to whether Roe was correctly decided is virtually meaningless. It's certainly no indicator of how "liberal" the nominee is. Ruth Bader Ginsburg has been quoted as saying that she thought Roe was a questionable decision. Simply put, what a nominee thinks about Roe says virtually nothing about how that person will rule on any other issue.
Liberals, therefore, should not let the Supreme Court nomination process focus on Roe. We should instead focus on what a nominee thinks about the importance of legal precedent. Is the nominee the kind of person who respects precedent and understands the real world consequences of overturning well-established law? Or is he the kind of person who allows ideology to blind him to such consequences.
Liberals should also focus on highlighting the inconsistency and consequences-be-damned recklessness of originalist thinking. For instance, even the most devout originalists, such as Justice Thomas, often fail to follow their own philosophy. Affirmative action is a good example of this inconsistency. There is a veritable mountain of historical evidence that the drafters of the 14th amendment did not intend to outlaw affirmative action. Indeed, the very people who drafted the amendment simultaneously created the Freedmen's Bureau, a massive government agency devoted solely to large scale affirmative action initiatives. Thomas nevertheless insists that affirmative action violates the 14th amendment. Similarly, both Scalia and Thomas have decided cases based solely on unwritten "principles of federalism" that are somehow implied by the structure of the Constitution. These principles, however, are just as illusive as the infamous "right to privacy" that originalists are so quick to condemn.
Pointing out hypocrisy only gets you so far, though. Liberals must also point out the extent to which originalism is incompatible with our modern laws and institutions. For instance, people must be told that under Thomas's originalist interpretation of the Establishment Clause, the separation of church and state that we take for granted would only apply to the Federal government. States would be free to found churches or build monuments to Jesus in the public square. On a more fundamental level, originalist thinking puts much of our modern administrative state in jeopardy, including virtually all important regulations governing the environment, public safety, working conditions, etc.
With so many important things to talk about, it's a pity we always focus on the one that's the least illuminating.
Disclaimer: On the off chance that I ever find myself before the Senate Judicial Committee, and some Senator gets his/her hands on this post, let me state for the record that while I think Roe is a questionable decision by modern judicial standards, I do not think it should be overruled. It's been the law for so long now that it would be far too disruptive to overturn it. It would be far preferable to leave the decision on the books, particularly considering how strong the policy grounds are for keeping abortion legal.
posted by A.L. at 11:42 PM
1 Comments:
That is a great post. You have summed up almost exactly how I feel about the abortion issue and constitutional interpretation generally.
By it's very nature, interpreting the constitution is political no matter how much people want to pretend that there are some sort of neutral principals. Originalism, IMO, is simply a way of disguising a conservative political philosophy in the guise of neutral interpretation because, for the most part, interpreting the constitution as it was purportedly understood in the 18th century would lead to abrogating many of the liberal principles that have been developed over the past two centuries. I am all for a minimalist judicial philosophy and letting the democratic process take its course, but it's silly to pretend that our view of the constitution has not and should not have changed over two hundred years.
I agree with you very strongly about Roe v. wade. It's a poor decision--at least by today's standards. IMO, the pro-choice movement would have ultimately been better served by fighting the issue out in the political process rather than relying entirely on a dubious judicial opinion. But I too would prefer that it not be overturned.
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