 |
What Would the United States Look Like if the Supreme Court Never Went Beyond the Literal Words of the Constitution |
 |
Orrin Hatch has been the Republicans’ go-to-guy when it comes to complaining, in advance, that President Obama may nominate an “activist judge” to succeed Justice Souter on the Court. Sen. Hatch was at it again on Hardball tonight. Chris Matthews did a pretty nice job of raising some substantive counterpoints to Sen. Hatch’s tired refrain of activist judges who substitute empathy for the objective clarity supposedly to be found in the Constitution. Matthews pointed out that the unassailable Brown v. Board decision (unassailable now, though quite controversial at the time) featured a heavy dose of empathy, as I pointed out earlier today.
I have several problems with Sen. Hatch’s complaints, as I have mentioned. Every time I hear him rail against judicial activism, he makes me think of another problem with his slogan-heavy approach. Two things came to mind tonight. First, on Hardball tonight, Sen. Hatch declared that the kind of nominee he would support must have a “reverence for the law”. That’s kind of funny, given Sen. Hatch’s recent defense of torture memo author and sitting federal judge Jay Bybee.
Second, as Sen. Hatch warned against judges who would impose their own views in place of the supposedly crystal-clear letter of the law as expressed in the Constitution, I thought about what the United States in 2009 would look like if Supreme Court justices refused to issue any ruling not supported by the precise wording of the Constitution.
Sen. Hatch is a lawyer and he surely knows that, over the years, it has become routine for the Supreme Court to develop judge-made tests and legal principles, found nowhere in the Constitution, to decide cases under the United States Constitution. The Constitution is a concise document. The whole thing, including amendments, takes up fewer than ten pages in a textbook. Most of the amendments in the Bill of Rights consist of fifty words or so.
It’s hard to believe that anyone, even Sen. Hatch, could genuinely believe that the Constitution could anticipate every possible case that could come before the Court. It’s clear that Supreme Court justices, even alleged textualists like Justice Scalia, understand this is not possible. They constantly, and routinely, apply tests found nowhere in the Constitution to resolve the cases that come before them. They have developed concepts like strict scrutiny and rational basis review, words found nowhere in the Constitution, to decide cases under the Equal Protection Clause (all justices accept the legitimacy of these judge-made tests). Justice Scalia himself declared in one case, involving a claim under the free exercise clause of the First Amendment, that it is ok for government to prohibit the free exercise of religion, as long as it does so as the “incidental effect of a generally applicable” law. A puzzled Justice O’Connor noted that the text of the First Amendment does not distinguish between laws that are generally applicable and laws that specifically target particular religious practices. In other words, Justice Scalia went beyond the four corners of the Constitution in deciding this case, Employment Division v. Smith.
That’s the law’s dirty secret: deciding cases is not always a simple question of flipping to the right provision of the Constitution or opening to the right section in the U.S. Code. Sometimes, judges have to use their discretion. They have to, you know, judge, how the law is to be applied to a particular case before the court.
That was a revelation to me when I started law school. I thought the law was a cut-and-dried thing, something you merely had to learn and memorize, then apply. It’s actually far more complicated. The law, including the Constitution, is often ambiguous. Its language is grand, sometimes vague. What is “an Establishment of Religion”, as described in the First Amendment (”Congress shall make no law respecting an establishment of religion”)? The Constitution doesn’t say. (For that matter, it doesn’t explain what a law “respecting” an establishment of religion means). It doesn’t come with definitions or instructions. That is left to the Supreme Court to decide, through judging, through discretion, sometimes even through empathy (as in Brown v. Board).
Sen. Hatch, and others who suggest that the Constitution is a model of clarity, containing precise text that can be readily and objectively applied to every conceivable case are doing the public a disservice. Sen. Hatch, as a lawyer who understands how the law actually functions, is deceiving people by reducing constitutional law to slogans.
One easy way to expose Sen. Hatch’s impoverished view of the Constitution is to consider what the country would look like if Supreme Court justices followed his advice, eschewing empathy and always following only the precise text of the Constitution. There would be no Brown v. Board; with its powerful moral declaration that “separate educational faciliies are inherently unequal.” The text of the 14th Amendment (which includes the equal protection clause) said nothing about the unconstitutionality of segregated schools, and it is pretty clear that the drafters of that amendment did not intend to prohibit race segregation in schools: in 1868, when the 14th Amendment was enacted, there were racially segregated schools in many parts of the country, including in Washington, D.C. pursuant to act of Congress. There would be no Loving v. Virginia, the case that struck down noxious laws against interracial marriage, rightly calling them “measures designed to maintain White Supremacy”. Again, there is no evidence that the drafters of the 14th Amendment intended to abolish these laws, which existed in a number of states in 1868. Moreover, the Court’s declaration in Loving (best case name ever?) that there is a fundamental “freedom to marry” supported by the due process clause of the 14th Amendment finds no support in the actual words of the 14th Amendment, or anywhere else in the Constitution. The Court inferred this right, finding that it is necessary to do so in order to give meaning to the word “liberty” under the due process clause.
We’d have to do without Supreme Court decisions finding that the equal protection clause means that government may not, in most cases, pass laws discriminating against women. That includes cases striking down laws that gave preference to men over women in administering estates (solely based on sex), military policies assigning different benefits to Air Force officers based on their sex, or requiring sex-segregated public colleges to open their doors to women.
Does that mean that we would still have racially segregated schools, that women could still be barred from jury service, that interracial marriage could still be prohibited, if not for the Supreme Court? We don’t know. It’s possible that legislatures would have, eventually, changed these laws on their own. But equality under the Constitution shouldn’t depend on a majority deigning to extend it to minority or politically powerless groups who could otherwise be shut out of the political process.
That’s why we have a Supreme Court. They are there to make sure that everyone gets equal rights under the law, whether they are black or white, male or female, gay or straight. It says so right over the entrance to the Court, which declares “Equal Justice Under Law”. Sen. Hatch envisions a nation where the majority rules and everyone else waits their turn. When the Supreme Court functions properly, it ensure that the majority may no trample minority rights at its whim, that even the most powerful elected official is accountable to the rule of law. I know, these are ideals recently honored in the breach. But Sen. Hatch wants justices who would not forget their role. He is trying to fool the public into believing that law is clear and objective, that the Constitution essentially applies itself, that a computer could do the work of the Court. That’s just not so, and I am thankful we have had justices who understand that, and who gave us great decisions like Brown v. Board, Loving v. Virginia and Romer v. Evans. Shame on Sen. Hatch for trying to put one over on the public.
