Saturday, September 15, 2012

Scalia's "Originalism" and Rehnquist's "[non-]Living Constitution"

This is the first in a series of essays examining the respective notions of judicial restraint advocated by Antonin Scalia and William Rehnquist

Originalism: Really the Lesser Evil?
By Laura K. Bomyea
Laura K. Bomyea is a third year student at Albany Law School.  She received her undergraduate degree from Bard College, where she studied philosophy and literature.  Laura serves as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law.  She currently works as a Law Clerk with Young/Sommer LLC.

Both of these pieces—Originalism: the Lesser Evil by Antonin Scalia[1] and The Notion of a Living Constitution by William Rehnquist[2]— raise the same basic questions: from where does the judiciary derive its legitimacy, and why, under these frameworks, is it taken for granted that the closer a branch’s relationship to popular democracy (elections, deferring to the majority on social issues, etc.) the greater its legitimacy?

Why is it taken as a given that a branch which is popularly elected necessarily affords greater protection of the people, greater freedom, than a branch like the judiciary, which is the furthest removed from “popular democracy”?[3] One of the central beliefs of both of these articles seems to be that the judiciary’s legitimacy is derived from its limited role as interpreter and arbiter of the Constitution—in Scalia’s case, as interpreter of the original intent of the Framers—and little more.[4]

These arguments seem to be based on the idea that the judiciary, because it is not elected by the populace, is somehow less capable, less empowered, to venture into social issues that are not cleanly covered by the provisions of the U.S. Constitution.[5]

Scalia argues that the Constitution has a fixed meaning and that the judiciary’s legitimacy depends on its ability to confine itself to interpretation of the Constitution’s meaning—and no more—rather than striking out into the field of “current social values” to redress novel issues based on current social norms.[6] Rehnquist argues that the judiciary should not venture into issues of social policy because that would make “an end run around popular government,” creating, because the judiciary is not elected, a situation that “is genuinely corrosive of the fundamental values of our democratic society.”[7]

For both judges, matters of social policy are better left to the legislature and executive because those branches are popularly elected; the judiciary has no legitimate role in attempting to advance these tangled social issues because judges are not elected by the people.[8]

But why not? Perhaps there is nothing inherently wrong with a judiciary that is (relatively speaking) removed from politics and insulated from an electoral process that produces candidates beholden to those who help get them into office.

For those who have an extreme distrust of the political process, it is hard to swallow a claim that the judiciary should not attempt to address any social or policy problems not rooted in the Constitution because the judicial branch is not democratically elected. To be blunt, one might be safer trusting one’s liberties much more with the judiciary than with the other two branches of government, despite the fact that the Supreme Court seems less and less interested in actually protecting those liberties.

Perhaps the real source of the court’s legitimacy is this very disconnection from popular democracy and changing majoritarian goals and values. Perhaps that is precisely why the courts are better equipped to redress pressing social inequities, and to prevent the mistreatment of the minority by the majority. In our society, courts are viewed as inherently legitimate because, put simply, they are viewed as fair; they are able not only to rigidly apply the law to a set of facts, but to rationally evolve the law to deal with the dramatic social change that has occurred since the Framers hashed out the Constitution.

But courts have no room to evolve under Scalia’s model, and under both Scalia and Rehnquist’s theories, such evolution would delegitimize the judiciary in a fundamental way.[9]

What is most bothersome about Rehnquist’s discomfort with the notion of judges who take on public policy is that it does not reflect, or at least no longer reflects, reality. As a pragmatic matter, our current political climate and judicial confirmation processes essentially preclude the appointment of a justice with any particularly extreme views. Further, the tendency of the executive and legislative branches to shift from control by the right to control by the left has provided opportunity for presidents from both parties to make appointments to the U.S. Supreme Court and other federal courts, such that courts continue to be made up of a mix of Republican and Democratic appointees with presumably diverse ideologies.

The widely publicized scrutiny and criticism of the past several appointments demonstrate that judicial vetting is not simply a “rubber stamp” process—neither party seems to get appointees placed on the higher federal courts without some level of scrutiny, and neither party seems to bother trying to put an extreme left or right wing candidate before the legislature for confirmation. What results, arguably, is appointment of justices who better reflect the much more moderate bent of the majority of Americans than their comparatively extreme counterparts in Congress.

As a result, the judiciary is not populated by renegades and ideological extremists—justices who might go off half-cocked in the way Rehnquist seems to fret about, who might be compelled by a “merely temporary majoritarian groundswell” to “abrogate some individual liberty truly protected by the Constitution.”[10]

Frankly, there is not enough agreement among those who make up the ideological extremes on a given issue to create a sufficient majority that would force radical social change from the bench of the U.S. Supreme Court. Chief Justice John Roberts could have been compelled by the contemporary conservative backlash against anything and everything supported by the Obama administration and committed to honoring his partisan benefactors by overturning Obamacare this summer. But he wasn’t and he didn’t.

Federal District or Circuit Courts could give in to the “majoritarian groundswell” generating support for mandatory drug testing as a prerequisite to receipt of welfare benefits—likely abrogating privacy, equal protection, and potentially due process rights of the poor—but (by and large) they haven’t. Left wing justices could use recent mass shootings as grounds to abrogate, or at least rein in Second Amendment gun rights, but they haven’t and likely won’t. The federal judiciary hasn’t been swept away by the tides of extreme political opinion—the continued existence of the wildly unpopular Citizens United case is a fine example of that.

There are many reasons for this, not the least of which is judicial respect for the integrity and role of one of the most highly venerated institutions in the country. One could hazard a guess that the judicial system—despite the right’s concerns about Roe v. Wade and the left’s beef with Citizens United—is more widely respected than either of the two democratically elected branches. Justice Roberts and his colleagues, possibly more than anyone outside the judicial branch, understand how vital it is to our system of justice that the courts retain their legitimacy and the respect of the people.

The entire legal profession is “self-policing” in a way that causes much greater scrutiny from within than that typically generated from without. The executive and legislative branches do have an easier time doing their jobs when they have the respect and admiration of the electorate, but the judiciary cannot do its job without maintaining the trust, respect, and veneration of the people, the government, and the rest of the legal system.

Yes, it is true that most judges are not elected by the populace. But there is no evidence that this somehow makes them less committed, less legitimate public servants, and that our freedom is somehow threatened by their attempts to address complex social problems which political expediency may be preventing the other branches of government from meaningfully addressing.

While it is possible to understand, at least intellectually, the rationale behind Scalia and Rehnquist’s disinclination toward allowing federal judges to play a role that involves anything more than serving as the Constitution’s robed police, one shudders to think of what our society would be like without judges who used their position to advance much-needed social changes and to protect minority groups from the tyranny of the majority, as a matter of basic justice. The Constitution is a powerful and important document, to be sure. But it is a document which did not originally contemplate a nation in which women were permitted to vote or make their own choices; it contemplated the enslavement of African Americans and the preferential treatment of the landed white man.

To advocate a strict interpretation of the Constitution unavoidably raises the question: what provisions of the Constitution should be strictly interpreted according to their original intent and which can we be more flexible with? Surely we don’t need to be faithful to provisions which grant a black person only a fraction of personhood? So which other Constitutional provisions may we disregard?

And as a broader issue, where would we be as a society without flexibility and departure from the original intent of the Framers on Civil Rights issues, a woman’s right to make her own decisions about her body, environmental and socioeconomic matters, protection of religious minorities and laborers, advancement of gay rights, or the question of privacy, if every session of the U.S. Supreme Court adhered to the same originalism principles advanced by Scalia?

Rehnquist points out two particularly glaring examples of so-called judicial activism gone bad – Dred Scott and Lochner[11]—but what about the scores of other cases that helped make positive social change in this country? Let’s not forget that there are many celebrated justices who found a way to balance the need for judicial adherence to the limitations of the judicial role, and the need for the law as an institution to evolve with positive social changes.

The court is not somehow less legitimate, or less faithful to the Constitution, by acknowledging that our basic notions of humanity have evolved, even where the texts of our founding documents have not.
[1] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
[2] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).
[3] See id. at 698; Scalia, supra note 1, at 854.
[4] Rehnquist, supra note 2, at 695–96; Scalia, supra note 1, at 852.
[5] See Rehnquist, supra note 2, at 695–96; Scalia, supra note 1, at 853–54.
[6] See Scalia, supra note 1, at 854.
[7] Rehnquist, supra note 2, at 706.
[8] Id.; Scalia, supra note 1, at 854.
[9] See Rehnquist, supra note 2, at 696; Scalia, supra note 1, at 854.
[10] Rehnquist, supra note 2, at 697.
[11] Id. at 700–03.