Listening recently to my local Christian radio station, I heard a prominent evangelist calling for the appointment of Supreme Court justices who will not "legislate from the bench." We need to be certain, said the commentator, that potential justices hold the right judicial philosophy. I assumed he meant that there is a biblically correct way of looking at the role of the courts, and that judicial legislation is not it.
Although I, too, would much prefer judges (and justices) who understand the difference between adjudication and legislation, I fear the distinction is not always as clear as we might think. Even the term "judicial philosophy," freely tossed around in political conversation, is slippery.
Consider a public opinion survey I saw over the summer, purportedly on the subject of judicial philosophy. It asked respondents whether they preferred justices who would follow the "original understanding" of the Constitution, or justices who believed the meaning of the text should "change over time." May I suggest, with the greatest of respect for the profession of surveying public opinion, that the dichotomy is not merely nonsense, but nonsense on stilts?
People often say, confusedly, that liberals want a Constitution that can change in meaning, while conservatives prefer to stick with original intent. Really? Suppose there is a justice (who believes the Constitution changes over time) who holds that, back in the old days, an unborn child was not a person within the meaning of the Fourteenth Amendment to the Constitution, and therefore enjoyed no right to life. Now, because of the upsurge in abortions, suppose this justice decides it is time to extend constitutional protection to the unborn.
Similarly, imagine a justice (who believes in original intent) who notices that Article I of the Constitution provides for Congress only the power to create and regulate "land and naval forces." By that justice's reasoning, the Air Force, undreamed of by the Constitution's framers, is unconstitutional. (In 1947, worried about just this possibility, some members of Congress introduced a constitutional amendment to remedy the perceived deficiency.)
Catchy phrases, beloved though they may be by the media and politicians, tell us little, if anything, about judicial philosophy. A judge's background often tells us even less. Despite common assertions to the contrary, identity is not philosophy.
After President Bush nominated Samuel Alito, Eleanor Smeal, head of the Feminist Majority Foundation, complained that since the Supreme Court already included four Catholics, people of other religions and nonbelievers would be underrepresented. Advocates such as Smeal seem to believe that if we know your background, we know your votes: black justices would vote the black way, white justices the white way, and so forth.
These days, conversation about judicial philosophy is really code language for something else. In the current climate, when public figures refer to judicial activism, we are usually meant to think of Roe v. Wade.
And, if by legislating from the bench we mean handing down opinions that seem to lack a clear mooring in precedent or text or, really, anything other than the will of the judges themselves, Roe certainly fits the bill.
Yet it is not only liberals who hand down results that seem inexplicable except as exercises of arbitrary will. As I have mentioned in these pages before, the Supreme Court's 2000 decision in Bush v. Gore certainly seems cut from the same cloth.
So why do conservatives tend to exalt one case and liberals the other? Because too often we are concerned primarily with the result, not the philosophy that produced the result.
The modern conservative critique of the work of the Supreme Court is, at its best, an argument about how, not what, the Court should decide. Columnist George Will and the editorial page of the Wall Street Journal have both recently said that justices should be chosen because of a respect for the methodology they are likely to follow in deciding cases—not because we think we know in advance how they are likely to vote.
During President Bush's disastrous effort last fall to elevate White House counsel Harriet Miers to the Supreme Court, many of her conservative opponents objected that they could not see in her background a commitment to overturn Roe v. Wade. Maybe not. But a position on a single case is not a philosophy.
Justice for Life? | "Of course he's against abortion," says Alito's mom. But Roe is expected to stand—and some say that shouldn't be the focus anyway. (Nov. 4, 2005)
Stephen Carter is the William Nelson Cromwell Professor of Law at Yale University. He is the author of The Impeachment of Abraham Lincoln (2012), The Violence of Peace, The Emperor of Ocean Park, and many other books. His column, "Civil Reactions," ran from 2001 until 2007.
With corporate consolidation in worship music, more entities are invested in the songs sung on Sunday mornings. How will their financial incentives shape the church?
One formed me. The other entertained me.
With corporate consolidation in worship music, more entities are invested in the songs sung on Sunday mornings. How will their financial incentives shape the church?español
As an evangelical couple fights adoption law, Native American Christians point to holistic answers.
Unless seminaries leave the ivory tower for local leaders in the public square. Like these ones have.
