The War of Words Behind the Supreme Court Nomination Battle

The bitter debate we are enjoying over the selection of a Supreme Court justice to replace the late Antonin Scalia is in large part a war of words. Conservatives and liberals do battle over terms such as “conservative” and “liberal.” Also “strict construction,” “judicial activism,” “judicial restraint,” “legislating from the bench” and “result-oriented.”

Or take the word “conservative.” It gets used to mean three very different things. The correct definition of a conservative judge is one who uses his or her powers sparingly, recognizing that — unlike the other two branches — the judiciary is not elected by the people. Thus, “judicial restraint.” Judges who ignore this principle get tagged as “legislating from the bench” — i.e, misusing their powers by making important policy decisions that should be left to the elected branches.

Roe v. Wade, the 1973 abortion decision, is Exhibit A for those who believe that judges are too “activist.” They ask: Where is abortion in the Constitution? On the other hand, there’s Brown v. Board of Education, the 1954 decision ending — or at least attempting to end — segregation by race in public life. If you ask yourself which of these is more “activist,” you’d have to conclude that it’s Brown, which put judges in the business of running school districts, creating employment quotas and generally interfering in a way that was shocking at the time.

But who now thinks that Brown was a bad idea? Almost no one. You couldn’t get confirmed as a Supreme Court justice, or (probably) elected president, if you said publicly that Brown was wrongly decided. This has put conservative nominees over the years — William Rehnquist, Robert Bork, Scalia himself — in a bind because, if truth be told, their professed doctrines can’t support or explain Brown.

“Conservative,” in the judicial context, can also mean something slightly different: a belief in the doctrine of stare decisis — the judicial equivalent of papal infallibility, which holds that once a court, especially the Supreme Court, has ruled on an issue, that judgment should not be overturned.

The law ought to be predictable, for reasons of fairness and economic efficiency. But judges make mistakes, and occasionally they recognize this and reverse themselves. A politician’s position on stare decisis in any given case tends to depend on whether he or she favors the result that’s being overturned. The decades since Roe have seen a lot of posturing about how this decision has woven itself into the warp and woof of our society, must not be tampered with and so on. These same decades also have heard plenty of politicians denounce unelected judges taking it upon themselves to push everybody around, etc., etc., etc.

A third way to be a judicial conservative is simply to believe that — contrary to everything they may say in public — the job of conservative justices is to impose the conservative agenda on the nation. George W. Bush should be president, not Al Gore. State governments should be forbidden to legalize abortion (not merely allowed to make it illegal). Affirmative action of all sorts should be flatly unconstitutional. Liberals did this kind of thing in the ’60s. Now, at long last, it’s our turn, says this kind of conservative.

A fair analysis of the court’s decisions of the past 50 years would show, I believe, that — at least in the first half of the period — liberals on and off the court were more guilty of judicial overreach than conservatives. But conservatives have been more guilty of inconsistency, if not hypocrisy, in claiming to have it all figured out.

The reason we want smart, thoughtful folks as justices is that there is no magic system that can solve the riddles that come before the Supreme Court. Sonorous phrases such as “due process of law” or “natural born citizen” don’t have any obvious and certain meaning. They need to be interpreted.

In all the yip-yap that followed Scalia’s death, you might have gotten the impression that he had discovered a brilliant new way of interpreting the Constitution, known as “originalism”: A phrase in the Constitution means what its authors intended it to mean. Actually, you would be hard put to find any judge who admits to thinking anything else. They all say, and probably believe, that they are interpreting the wishes of the authors — if nothing else, the authors’ wishes about how they wished to be interpreted. “Originalism” isn’t as original as all that.