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Originalism, Hypocrisy, and the Role of the Judiciary

photograph of faded US constitution

David French’s brief column responding to a New York Times interview of retired Supreme Court Justice Stephen Breyer illustrates beautifully the bind that originalists – those who believe that constitutional provisions ought to be interpreted according to how they were understood by the people who enacted them – have put themselves in. French, a conservative pundit and former lawyer, admirably owns up to the fact that, because American history is “deeply confused,” originalism enables judges to pick and choose the “particular strand of history he or she prefers and then import personal preferences into what is supposed to be an objective analysis of meaning.” While he does not put it this way, French is in effect accusing originalists of intellectual dishonesty or hypocrisy: they profess to be interpreting the Constitution pursuant to “original meaning,” but in fact they often surreptitiously apply other, non-originalist criteria to select among multiple historical meanings.

But French stubbornly cleaves to the line that the “judiciary’s role is to interpret the law, not to change the law.” Thus, French seems to find himself without any tools for interpreting the Constitution: history is too complicated for judges and too susceptible to intellectual hypocrisy, but judges must not “make law” by interpreting the Constitution in accordance with their values and other “subjective determinations.”

As I will show, on the one hand, and contra French, there is a way for originalism to be intellectually respectable — but it probably is not palatable to most originalists. On the other hand, the originalists’ insistence that judges do not make law is simply untenable, and ironically, quite contrary to the history and tradition of American constitutional jurisprudence.

Before suggesting how originalism can avoid hypocrisy, I would like to expand briefly on French’s critique of originalism. Undoubtedly, when interpreting the law, the text matters a great deal. When the meaning of the text is clear and unambiguous, that is often the end of the inquiry. For example, there is no doubt that Article II of the Constitution sets an age limit of 35 for any U.S. President. The text is clear, and no “living constitutionalist” believes that “the Age of thirty five Years” ought to mean anything other than 35 years old. You might say that practically everyone agrees that the “plain meaning” criterion of interpretation gets lexical priority over other tools of constitutional construction: if a provision has a plain meaning, then the plain meaning controls.

However, there are many clauses of the Constitution that do not have a plain, unambiguous meaning. Moreover, these tend to be among the most important clauses. For example, what does the Fourteenth Amendment mean when it prohibits the States from depriving any person of “life, liberty, or property” without “due process of law”? The originalist answers that it means whatever people understood it to mean when it was ratified in 1868.

The trouble with this answer is that oftentimes the historical record either lacks suitably detailed discussions of a given constitutional provision, or it contains multiple, diametrically opposed interpretations, each of which had some currency among those who enacted the provision.

The former situation can happen when framers or ratifiers deliberately leave the meaning of a provision ambiguous to maximize the chances of finding favor with different constituencies. The latter situation is what French means when he says that American history is often “confused.” Since the originalist believes that the original meaning is the only legitimate criterion of constitutional interpretation, such situations leave originalists in the position of having to pick and choose among original meanings, or inventing them. At that point, the only criteria of interpretive choice available to them are criteria that have no place in their interpretive theory. And this leads to intellectual dishonesty where, for example, originalists purport to find that one strand of historical interpretation is the “mainstream view” while the others are “outliers” or “anomalies,” when in fact they have chosen that strand based on their own policy preferences, moral values, or political philosophy.

There is a way for originalists to avoid intellectual dishonesty, however: embrace radical judicial restraint. So, whenever the historical record contains multiple interpretations of the provision at issue or, alternatively, is too sparse to determine a unique meaning, the originalist should simply refrain from the task of interpretation and leave it to Congress to sort out the mess through the amendment process. This approach would certainly lighten the federal judiciary’s workload. I suspect it would also make the Constitution essentially a dead letter.

But surely, French is right that allowing judges to make “invariably subjective determinations” about the practical consequences of their rulings and the way that society’s values evolve in interpreting the Constitution would subvert democracy itself because “it is the democratically elected branches of government that are responsible for that evolution, not the judiciary.” Well, this would come as news to the Founders. Reading judicial opinions that interpret the Constitution from the Early Republic period, one is struck above all by their repeated and unabashed invocations of principles of natural law and political philosophy to guide their interpretation of America’s fundamental law. As far as I am aware, none of the Founders or ratifiers — categories which included, in some cases, the judges themselves — ever took issue with this interpretive method, although they may have disagreed violently about the particular principles at play.

But that argument is no more than an appeal to tradition. The better answer to French’s concern is that, if the judiciary’s “lawmaking” role has been sanctioned by a Constitution duly ratified by the people, then that role cannot be un- or anti-democratic — at least not by the lights of the polity created by that particular Constitution, which sets forth the conditions of democratic legitimacy in that polity. Ironically, as I indicated above, there is every reason to think that the Constitution’s drafters and ratifiers authorized the judiciary to use tools of constitutional interpretation other than, and in addition to, original meaning. In other words, we should believe that the Constitution as understood by those who enacted it gave judges the authority to make just the sorts of subjective determinations of which French disapproves. Of course, one might ask why what the “people” decided the judiciary should do in 1787 is entitled to such deference. But this is no more than an application of the so-called “dead hand problem,” and not a special problem for the jurisprudential approach I am proposing here.

French’s column is almost poignant in capturing something akin to the transition of a religious person from unclouded faith to reluctant and guarded skepticism. I would argue that his reasons for reluctance are misguided: there is nothing contrary to conservatism in the view that judges should make value judgments and other “subjective” determinations. Actually, that view is entirely consistent with history and tradition.

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Should the Law Protect People from Being Viewed as Bigots?

photograph of statue in front of Supreme Court building

In a recent judicial statement, Supreme Court Justice Samuel Alito wrote that those who adhere “to traditional religious beliefs about homosexual conduct” are in danger of being “labeled as bigots” and “treated as such.” This kind of statement has become a familiar refrain for Alito, ever since the Supreme Court recognized the right to same-sex marriage in the 2015 decision Obergefell v. Hodges. In Alito’s dissenting opinion in Obergefell, he similarly worried that the Court’s decision would be used to “vilify Americans” who oppose same-sex marriage.

Part of Alito’s concern is that the Court’s recognition of same-sex marriage might influence how some people of faith will be treated (given that many who oppose same-sex marriage do so for religious reasons). He worries that some might take these rulings to suggest that certain religious beliefs are intolerant or hateful, and that this might threaten the religious freedom of those people as a result. I’ll return to the issue of religious freedom later.

But first, I think it is worth thinking through his concerns about people being vilified or treated as bigots – regardless of their particular religious beliefs – if they oppose same-sex marriage. Alito’s position seems to rest on an assumption that the law ought to protect people from being viewed as bigots, at least in this circumstance. This naturally leads to a question: is he right? Should courts, at least sometimes, interpret laws a certain way in order to protect people from being viewed as bigots?

The short answer, I think, is no. But this short answer deserves a longer explanation that involves some important philosophical considerations.

In thinking through this, it will be useful to try to get as clear as possible about what Alito’s complaint is and is not. Alito’s complaint is not that the Supreme Court is calling people who oppose same-sex marriage bigots. The Court hasn’t done that. Instead, Alito’s complaint seems to be that the Court has issued rulings that imply that people who oppose same-sex marriage are bigots, and that others will view and treat opponents of same-sex marriage as bigots as a result. Take, for example, a 2021 judicial statement from Justice Clarence Thomas that Alito joined. That statement claims that in Obergefell the Court suggested that those “who believe that marriage is a sacred institution between one man and one woman” were guilty of “espous[ing] a bigoted worldview.”

As evidence for this claim, Thomas cites several statements from the Court’s majority opinion in Obergefell where the Court stated, among other things, that excluding same-sex couples from the right to marry “demeans gays and lesbians,” and serves “to disrespect and subordinate” them. Thomas and Alito appear to implicitly assume that those who support actions that demean, disrespect, and subordinate LGBTQ people are behaving in a bigoted manner toward LGBTQ people.

Thus, part of Alito and Thomas’ reasoning seems to go like this:

1) If one supports a position that demeans, disrespects, and subordinates LGBTQ people, then one is a bigot.

2) The Supreme Court majority in Obergefell treats a position supported by those who oppose same-sex marriage as one that demeans, disrespects, and subordinates LGBTQ people.

3) Therefore, the Supreme Court implies that those who oppose same-sex marriage are bigots.

I use the word “implies” in the conclusion instead of “views” because it is not clear that Thomas and Alito think the Supreme Court majority in Obergefell accepts premise 1. On the contrary, the Court’s majority in Obergefell held that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” But Alito and Thomas seem to think that this statement is insufficient to cancel the Court’s implication that those who oppose same-sex marriage are bigots.

For the sake of argument, let’s accept Alito and Thomas’ reasoning. This still leaves us with a question. How would the Court implying that those who oppose same-sex marriage are bigots lead other entities like “governments, employers, and schools” to view opponents of same-sex marriage as bigots? One reasonable answer is that Supreme Court decisions license certain views and actions by others. In other words, if the Supreme Court puts its stamp of approval on something, others are more likely to follow suit.

There is certainly something to this line of reasoning. For example, shortly after the Supreme Court held that a web designer had the right to refuse to make wedding websites for gay couples, a hairdresser announced that she would not serve transgender customers.

So let’s assume for the sake of argument that Alito and Thomas are right that the Court has implied that those who oppose same-sex marriage are bigots and that others are more likely to view those who oppose same-sex marriage as bigots as a result. Does this provide the Supreme Court with a reason to stop recognizing a right to same-sex marriage?

To answer this, consider an analogy. Imagine a court invalidates a law that allows employers to pay women less for the same work as men simply because they are women. Imagine the court does so on the grounds that such a law demeans, disrespects, and subordinates women. If we accept Alito and Thomas’ arguments, by analogy, this should lead us to conclude that those who oppose equal pay for women are bigoted against women. But that consequence seems irrelevant to whether courts should require equal pay for women.

I expect that Alito would agree that courts may prevent sex-based pay discrimination, and that he would reject an argument that courts should avoid doing this simply because it may imply that those who oppose equal pay for women are bigots. If he would, he must differentiate this analogy from the case of the right to same-sex marriage. How might he do that?

First, he might claim that a relevant difference is that those who oppose equal pay for women are bigots, while those who oppose same-sex marriage are not. This is, of course, a controversial premise. But even if we grant this premise for the sake of argument, such a response fails. This is because the response overlooks the fact that the risk that someone might be viewed as a bigot doesn’t outweigh the important moral, political, and legal value of ensuring equality based on sex or sexual orientation. Whether or not those who oppose such equality are viewed as bigots shouldn’t be the controlling issue. This gets priorities wrong.

Second, Alito might claim that there is a special concern about religious liberty in the case of those who oppose same-sex marriage for religious reasons. Indeed, in his recent statement he worries specifically about those with “traditional religious views on questions of sexual morality” being viewed as bigots.

Two points are worth making in response. First, it is important to distinguish viewing someone’s religious beliefs as bigoted versus discriminating against someone because of their religious beliefs. We have compelling moral and legal reasons to prevent discrimination based on religion. That includes preventing discrimination based on religious belief. But one can view someone’s religious beliefs as bigoted without discriminating against them, and it’s important to not conflate the former with the latter. Alito seems to have distinct worries about religious opponents of same-sex marriage being discriminated against. But that is a separate issue that would require its own examination.

Second, even if an employer wants to pay women less than men for religious reasons, the court still ought to prevent employers from doing this, even if it implies that the employer’s religious beliefs are bigoted. This is, in part, because people are not prevented from retaining religious belief, even if those beliefs are considered bigoted by others. This is also, in part, because religious freedom doesn’t require that others — including the government — accept or act in accordance with one’s religious beliefs.

At this point, one might raise the following objection: While it is true that forbidding same-sex marriage harms many LGBTQ people, isn’t it also the case that permitting same-sex marriage will harm many religious believers? The potential harms to religious believers are of two types. First, religious believers might be viewed as intolerant or bigoted. Second, religious believers might be forced to sanction same-sex marriages in various ways that violate their consciences (e.g., by being required to provide goods or services for same-sex weddings). Why aren’t the harms to LGBTQ people and religious opponents of same-sex marriage here symmetrical?

The appropriate response comes in two parts, to correlate with the two types of potential harms to religious opponents of same-sex marriage. First, the harm of being viewed as intolerant or bigoted generally is not the kind of harm that the government has good reason to prevent. (There are exceptions to this general rule, like legal protections against defamation.) On the other hand, the government often has good reason to prevent groups of people from suffering harm by not being given equal access to basic rights, like the right to marry.

Second, the question of whether religious believers should be given exemptions from certain laws due to their opposition to same-sex marriage is a question that can and should be treated separately from the question over whether we should recognize a right to same-sex marriage. The ongoing debates over whether such exemptions should be granted are a separate issue. One can decide that it’s appropriate to grant such exemptions, even if one thinks that opposing same-sex marriage is hateful or intolerant. This is because religious freedom should be extended even to views that we find hateful or intolerant.

Thus, in short, while it is understandable that many who oppose same-sex marriage don’t want others to view them as bigots, this is not a situation that the law should seek to shield them from.

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On the Possibility of Presidential Self-Pardoning

image of Alexander Hamilton aside crown on ten dollar bill

It will have taken 247 years to come up, but next year’s President of the United States may present a unique political problem: There’s a chance that the person elected president will have been convicted by then of one of the ninety-one crimes with which they have been charged. But the Constitution, in enumerating the powers of the presidency, states that “The President shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment” (Article II, Section 2, Clause 1). Which raises the question: does the president have the power to pardon himself?

Textualism is a version of what philosophers call “positivism.” Positivists believe that the law is just a set of rules and that judges should keep as close to the letter of those rules as possible. Only where the law “runs out” – where there’s a need for a legal finding, but not enough textual evidence to support any particular one – should we settle for the subjective opinion of the judge.

The main textualist argument supporting the president pardoning himself is that nothing says he can’t. Absent any direct textual evidence against the self-pardon, there’s no basis for preventing it. But even if we stick to the text and confine ourselves to the strict meaning of the word “pardon,” can a person really pardon themself? Normally, you ask, or even beg, another for pardon. Just as you can’t “bequeath” to yourself, or “endow” yourself, or “bestow” something upon yourself, in ordinary English, “pardoning” is not something you can do to yourself.

This interpretation, then, seems to frustrate linguistic convention, but maybe there’s an argument to be made regarding original intention. Perhaps, we need to go beyond the text and ask about the history and intended purpose of the presidential pardon. This is “originalism.”

Here’s some history. The Founders were concerned with limiting the president’s power and ensuring those powers couldn’t be abused in self-serving ways. There wasn’t an explicit debate about self-pardons during the Constitutional Convention, but there was a debate about whether there should be an explicit treason exemption. Edmund Randolph said pardon authority in such cases “was too great a trust” since the president “may himself be guilty,” and George Mason said that the president might “frequently pardon crimes advised by himself.” Alexander Hamilton responded that the exception for impeachment was already sufficient to prevent the abuse of the power by self-pardon, because any crime committed by the president would result in an impeachment, which a self-pardon could not overturn. In other words, no one favored self-pardoning, but Hamilton thought the impeachment clause would be enough to prevent it.

Part of our legal trouble, however, is that we simply have too much history. You can always find some historical evidence to support whatever position you like. James Madison alone left us over six hundred pages of notes from the Constitutional Convention. More recently, originalist Samuel Alito cited an English common-law text from the twelfth century to support his opinion in Dobbs v Jackson. Imagine the number of pages of primary texts available on any legal question since the twelfth century.

This originalist approach is inherently conservative since it promotes the idea that we should interpret the Constitution exactly the way people would have 250 years ago. (In the Colonies, at that time, adultery was punished by a fine and a public whipping, while sodomy was punished by public execution.) Originalists would argue we are still bound by that original understanding, and, maybe, that there are more specific principles of historical interpretation to use.

But here’s another theory. One could argue that, while we must start from the text and acknowledge that the historical context is not irrelevant, our aim is to build a unified theory of “pardon power.” What is a pardon’s purpose? How does a pardon achieve its goal? Pardon power was not created to allow presidents to evade responsibility for wrong-doing, and so self-pardons that serve no other purpose should not be permitted.

What if the president is the victim of a weaponized justice system? Even so, another feature of law that should influence our theory of pardon power is that no one should be the judge of their own case. We shouldn’t allow the president to have the last word on whether or not they have committed, or should be excused from, crimes for which they have been duly convicted.

This is called the liberal, or constructive, theory of law; though it’s closer to natural law theory than to “liberalism” in the way that it is used on Fox or CNN. The idea is that the law and the Constitution rely on notions like equality, liberty, and rights, and that there is no letter of the law, nor historical substitute, for spelling out their precise content.

Consider the Ninth Amendment. Madison, who wrote the Constitution, initially opposed adding the Bill of Rights to the Constitution, and only agreed if this addition was included: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Liberals would argue that since unenumerated rights are, you know, not enumerated, there is no straightforward way to interpret what those rights might be without developing an accompanying theory of what rights people should have and what entitlements they deserve. Just for context, the unenumerated right most debated these days is the right for people to make private family and sexual choices without government interference. Is this an essential part of liberty properly understood, or are liberals using the Constitution to impose their own contentious view on others? (Ironically, the view liberals are trying to impose is the view that others should not impose their particular views on others.)

Originalists and textualists, however, claim that the liberal approach is too indeterminate and that we can’t fairly interpret the Constitution by simply using our private understandings of pardons and their purpose. But it looks, at least based on this brief survey, as if presidential self-pardons are inconsistent with most theories of law – except perhaps the strictest kind of textualism. Still, let’s hope we don’t have to find out what the courts think of the constitutionality of a presidential self-pardon.

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The Call for Supreme Court Reform

photograph of Supreme Court building facade

Representative Alexandria Ocasio-Cortez has called for reforms to the Supreme Court of the United States (SCOTUS), specifically increasing the number of justices. The reforms are needed, she says, because of the rightward tilt of decisions over the past year including Dobbs v. Jackson Women’s Health Organization (abortion) and 303 Creative LLC v. Elenis (public accommodations and discrimination). On CNN she claimed that if reforms do not occur, then SCOTUS will function “without any check on their power, without any balance on their power, then we will start to see an undemocratic and, frankly, dangerous authoritarian expansion of power in the Supreme Court.” The opinion pages of major journalistic outlets like The Washington Post include similar views decrying judicial behavior.

To assess the need for reform and effectiveness of potential solutions, we must first determine what it would mean to have a properly functioning judicial system. One way to evaluate our social and political institutions is through John Rawls’s constructivist lens presented in his seminal work A Theory of Justice (and elsewhere). Rather than starting with a specific (and contentious) ideal, we tie our conception of proper functioning to the product of particular processes. As Carla Bagnoli describes it, constructivism is a view that “insofar as there are normative truths, they are not fixed by normative facts that are independent of what rational agents would agree to under some specified conditions of choice.”

To make sense of this description I like to think about where constructivism fits into a picture of objectivity and subjectivity. At one end we have facts — statements such as “the cat is on the mat” — whose correctness is determined by a set of referents independent of any human observer. As long as there is a mat, there is a cat, and the two objects have the right kind of relationship, the statement is either correct or incorrect. This is a realist view in which there are objective truths to be discovered in the world. But moral, political, and legal decisions are different from such prosaic examples. So, some have argued that normative statements are mere matters of opinion, lack truth value, and may be little more than non-cognitive expressions of emotion like “SCOTUS decision — Boo!” or “SCOTUS decision — Huzzah!” In other words, there is no objective truth whatsoever to Rep. Ocasio-Cortez’s evaluative claim that SCOTUS is involved in “a dangerous creep toward authoritarianism.”

Constructivists attempt to locate themselves in between realist views and non-cognitivist views. In constructivist views, statements about morality, politics, and the law have independence from individual human beliefs and emotions, and thus they have a claim to being objective. But the truths in these normative domains are not discovered facts, as a realist would claim. The truths are created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game.

What does this have to do with SCOTUS? Rawls makes a distinction between different types of games we can be playing in political arenas. The difference between these games is the nature of the procedures used to identify evaluative truths. One of these games involves imperfect procedures; another game uses pure procedures.

Imperfect procedures start with the assumption that there exists an independent criterion concerning what constitutes a correct answer, but that the practices available to an investigator do not guarantee that the correct answer will be identified. Rawls uses a jury trial as an example. Lawyers use the adversarial method to convince a jury of peers that the accused either is or is not legally guilty. But those who are watching often want a verdict to express not legal guilt but something more — namely did the accused actually act in a way that warrants a conviction or acquittal. As Rawls puts it, in a jury trial using the adversarial method, “[e]ven though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome.” The existence of the appeals procedure, and the work of organizations like The Innocence Project, suggests that the adversarial method does not guarantee the correct answers.

Alternatively, the major difference with a pure procedure is that a pure procedure does not assume the existence of an independent reality and criterion for what constitutes a correct answer. Instead, the procedure itself, when run, constructs the correct answer. An example of such procedures is a bracket procedure used in professional tennis tournaments. There is no answer to the question “who is the best women’s player at Wimbledon in 2023?” until the tournament is finished. Iga Swiatek may have been ranked number one in the world and the number-one seed at Wimbledon, but before the tournament finished, there was no answer to the question. Now that the tournament is over, we can answer the question: Markéta Vondroušová is the best women’s player at Wimbledon in 2023, despite being unseeded at the beginning of the tournament.

If we want to know whether SCOTUS or the other federal courts are functioning properly or in need of reform, we need to determine what type of procedure governs the practices of the courts and see whether SCOTUS is behaving in accordance with these conceptions. Begin with the following question: Is SCOTUS supposed to be operating in a manner consistent with imperfect procedural justice?

At first glance, that seems to be the case. Decisions made by SCOTUS are supposedly constrained by several independent criteria. First, the content of the U.S. Constitution, especially the Bill of Rights, is supposed to be an independent constraint on their rulings. SCOTUS can’t ignore issues of due process. SCOTUS and the legislative bodies have the ability to shape the nature of due process, but the Fifth Amendment requires that certain rules are followed. Next is the concept of standing which requires a plaintiff to have an interest that is violated, an “injury-in-fact.” This keeps the court from making decisions based on hypothetical cases of legal injury. There is also the concept of stare decisis, the idea that courts should honor precedent to create a predictable and consistent legal system (see here).

A Supreme Court justice that had this many constraints and attended to them should, as Chief Justice John Roberts stated in his confirmation hearing, see their “job as to call balls and strikes.” In other words, the role of a justice is to look at the facts of a case and consider the independent constraints of precedent, statutory laws, and constitutional laws, and merely make a judgment about the truth in the case.

Has SCOTUS lived within these constraints? Some have argued that the Plaintiff Lorie Smith did not have standing in 303 Creative LLC because a) no one asked her to make a website for a wedding between two people of the same sex, and b) no state agency invoked the Colorado Anti-Discrimination Act in legal action against her. She suffered no injury-in-fact. Further, given that Dobbs overturned an almost 50-year-old precedent in Roe v. Wade and SCOTUS overturned decades of precedent in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, there is reason to believe that the court is not abiding by stare decisis. Admittedly, stare decisis is not an absolute constraint, otherwise the ruling of Brown v. Board of Education would also be problematic. However, given the current willingness to claim that a previous case was wrongly decided despite being upheld by other decisions suggests it is currently no constraint at all.

Next, consider that Marbury v. Madison reinforced the concept of judicial review – the Court can invalidate laws and statutes considered inconsistent with the Constitution. Judicial review is effectively the power to interpret the prevailing legal institutions, especially the Constitution, to justify decisions. So, it is not simply the Constitution, but a justice’s interpretation of that document, that is operative in justifying SCOTUS decisions. Ultimately, a justice issues guidance as to the correct answer according to how their particular interpretive lens (originalism, contextualism, legal pragmatism, etc.) makes sense of the facts of the case. But that means the Constitution is not, by itself, an independent constraint on judicial decisions either.

In short, it is not clear that there are constraints on SCOTUS, so it looks like we should not see it as using imperfect procedures.

Does SCOTUS instead operate according to a pure procedure? It might seem so since we don’t really know the correct answer to a legal question until SCOTUS rules. The process of appealing a lower-court decision, SCOTUS hearing the case, and making a decision settles the matter. Pure. Procedure. So, on this view, SCOTUS in Dobbs, 303 Creative, etc., is functioning as it should, and the basis for criticizing the Roberts Court as radical, activist, illegitimate is questionable, as is the call for reform.

But it is important to note that SCOTUS is not like Wimbledon. Tennis tournaments have rules that are drawn up by one group of people, while another group of people act as judges during matches. The procedure — the bracket — then develops based on the actions of the players as overseen by the judges. This is decidedly different from how the Supreme Court currently operates. Between choosing judicial interpretive lens, interpreting the rules of standing, determining whether stare decisis should be honored, SCOTUS is fundamentally not like these sports tournaments. When a case comes before SCOTUS, the justices can act as both the umpires and the rules committee. They make choices about the relevant rules and their application after the legal competition has begun. In sports, all of these decisions are made and publicized prior to the first match. So, in very important ways, SCOTUS operates in a way that is not even consistent with a paradigm example of a pure procedure. In other words, these are not decisions created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game. They are also constructed by those who are changing the rules as the game proceeds.

If we accept the above, then recent decisions show the Court is functioning as designed, but perhaps not functioning as we want. The decisions are not discovered by an imperfect procedure; they are not created by a pure procedure. Instead, they are the result of something else, such as expression of political power. So, what can be done? When evaluating institutions, Rawls would have us ask “is this how a group of rational individuals, unaware of their own biases or even personal characteristics, would design the rules of a judicial system?” If the answer is “No! This is not the design we want,” will increasing the number of judges fix the problem?  Unfortunately, increasing the number of justices, as Ocasio-Cortez suggests, will not make the court function properly — it will simply shift the balance of power. Instead, what is needed are enforceable constraints on the decisions of justices so that SCOTUS operates more like a sporting event and less like a pure exercise of political power.

 

The author would like to acknowledge the help of his colleague Dr. Dominic DeBrincat, Professor of History.

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Narrowly Defined: Corruption in the Court

photograph of empty suit at podium with money hanging out of jacket pocket

U.S. Supreme Court Justice Clarence Thomas was revealed by journalists at ProPublica to have received millions of dollars in undisclosed gifts from real estate billionaire and political megadonor Harlan Crow. Failing to disclose was almost certainly in violation of the Ethics in Government Act. Moreover, Harlan Crow had business before the Supreme Court both indirectly as a board member of the American Enterprise Institute and directly via a business partly owned by Crow. When invited before the Senate Judiciary Committee to testify on the Supreme Court’s ethical standards, Chief Justice John Roberts declined to appear. Unlike federal judges the Supreme Court has no formal code of ethics, and in a joint statement issued by all nine justices the Court refused to implement an enforceable code of ethics.

This latest scandal follows in the wake of prior ethical concerns about Justice Thomas specifically as well as declining trust in the Supreme Court generally (as discussed previously by the Prindle Post here and here.) The Senate Judiciary Committee hearing on the matter was held May 2nd and the story is ongoing. Nonetheless, it is worth stepping back to take a broader look at influence peddling and the Supreme Court. For beyond the details regarding this or that justice is a legacy of Supreme Court jurisprudence that has created a narrow understanding of malfeasance – one which merits greater ethical scrutiny: What counts as corruption? How broadly or narrowly should it be defined? Who gets to say?

One significant line of decisions concerns money in elections. In 1976, the Supreme Court ruled on Buckley v. Valeo. This controversial campaign finance decision had far-reaching implications, establishing first, that money is speech, and second, that money in the context of elections can still be regulated to prevent both corruption and the appearance of corruption. This left open the question of just what constitutes corruption and who gets to define it. Some, such as legal scholar Deborah Hellman, have argued that courts should largely defer to elected representatives as the appearance of corruption depends on the official’s role and the institution’s function.

The Supreme Court, however, has often taken a much more active role and tends to define corruption quite narrowly. In Citizens United v. Federal Election Commission (2010), for example, the Court held that corporations and nonprofits could spend unlimited money on political candidates as long as they were not formally coordinating with campaigns. In further campaign finance decisions, the Supreme Court shot down an Arizona law passed by public referendum which sought to limit the influence of money in state elections and loosened limits on individual campaign contributions. Beyond campaign finance, in a unanimous decision in McDonnell v. United States (2016), the Court held that Virginia Governor Bob McDonnell accepting $177,000 worth of gifts from business owner Jonnie Williams, Sr. was not corruption, because Governor McDonnell only returned the favor by facilitating meetings or hosting events, as opposed to, say, implementing a specific executive order in Williams’ interest.

Supreme Court rulings on corruption occur in several legal contexts and cannot be synthesized perfectly. But generally speaking, the current Court appears to consider quid pro quo (“something for something”) corruption as the primary concern. In other words, there needs to be a specific documentable instance in which a public official was offered money or other gifts in exchange for a particular executive, legislative, or judicial action. Moreover, per the Supreme Court, providing political access in exchange for money does not count as quid pro quo.

What concerns might this loose interpretation raise? Why should anyone object?

First, the Supreme Court has prioritized those with resources, namely corporations and the wealthy, by refusing to restrict their political access and spending ability. The Court has been less interested in ensuring that those with less resources have equal access to the political process. In short, their calculus about balancing rights of the powerful with the rights of the less powerful may be off. The political theorist Mark Warren has called attention specifically to the exclusionary dimension of corruption in which people are denied due influence on decisions for which they are impacted by the outcome. The Supreme Court’s lack of concern with selling political access may exacerbate this form of corruption.

Second, the Supreme Court assumes that if a public official is not deliberately doing someone an explicit favor then they have not been influenced, but this is out of step with current psychology. It is well-established that humans are influenced by our social networks and often engage in motivated reasoning, where individuals consciously or unconsciously alter their uptake and analysis of information on the basis of their personal and community biases. Conflicts of interest appear to cause broad, and sometimes unconscious, influence – a problem that cannot be addressed simply by transparency measures. The Supreme Court has attempted to reassure Congress that their decisions are not impacted by gifts. But even if it is true that no justice has deliberately changed an opinion, this does not exclude more subtle forms of influence that come with the territory of being human.

Third, by focusing almost exclusively on quid pro quo corruption, the Supreme Court ignores a larger culture of moneyed influence and pay-to-play politics. It is not always a mystery what the wealthy and powerful want – especially those such as Harlan Crow who are extensively involved in politics. If political officials are allowed to be the beneficiaries of private largesse, they can read the room and see what actions would be well-received – no shady deals necessary. Moreover, in a context where the wealthy are specifically allowed to buy access to the politically powerful (as ruled in McDonnell), quid pro quo corruption is difficult to prevent and detect. Presumably public servants, such as Clarence Thomas, do not provide the courtesy of marking in red ink where they compromised their values.

All these concerns are heightened when it comes to the Supreme Court. Elected officials are supposed to be responsive to their electorate, so there is at least some question as to how to precisely draw the line between reasonable access and undue influence. However, justices are appointed and are supposed to be above the electoral fray. On the basis of this reasoning, the ethics codes covering appointed judges should be more strict than for elected officials, not less so.

The overarching concern is that the Supreme Court has enabled an undemocratic system in which elected officials are not responsive to their voters, and judges are not (reasonably) unbiased decision-makers, but instead both favor the interests of the select few that can afford access. There may be defensible reasons for the Supreme Court’s jurisprudence, however, in light of the Clarence Thomas scandal, one wonders if the Supreme Court’s decades-long crusade against anti-corruptions laws needs to be viewed with renewed suspicion.

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The Liberal Case for Federalism

image of US map with state flags identifying borders

One of the most striking aspects of the United States’ system of government is its federalism: those titular states are not mere administrative divisions, but unique sovereigns with extensive powers denied to the national government. Historically, support for federalism has cut across the liberal or conservative divide: it was the liberal Supreme Court Justice Louis Brandeis who, in 1932, famously coined the phrase “laboratories of democracy” to describe how the Constitution’s Tenth Amendment allows “a single courageous State . . . if its citizens so choose . . . to try novel social and economic experiments without risk to the rest of the country.”

That began to change around the middle of the last century, as Congress and the federal courts assumed the role of champions of individual rights and equality as against states committed to marginalizing certain classes of citizens. Now, with many statehouses dominated by conservatives, partly through partisan gerrymandering, and this Supreme Court paring away constitutional protections of individual rights — most notably, the right to abortion — there seems to be little reason for liberals to celebrate our decentralized system. Indeed, at least two liberal writers have recently tweaked Justice Brandeis with the titles of their books.

But federalism can, I think, be a friend to liberals.

In this column, I will argue that a state-centric approach to the liberal project is attractive for a wide variety of reasons.

The first point is prudential and straightforward. It is always better to have two shots at achieving your political goals rather than one. If liberals have control of statehouses, defeats on the national level — whether in the Supreme Court or in Congress — need not mean the demise of their agenda.

Moreover, the chances of success at the state level are not as dim, or at the national level as bright, as many liberals think.

There is a persistent myth that when it comes to individual rights and equality, the federal government gets things right more often than state governments.

This is understandable, given the central role the federal government played in vindicating the rights of African-Americans, denied to them by Southern states, during the Civil Rights era.

But the U.S. Supreme Court has not always been on the “right” side. The Court’s seminal civil rights decision in Brown v. Board of Education outlawed segregation in public schools by overturning one of its own rulings, Plessy v. Ferguson. Similarly, the important voting rights case Smith v. Allwright — where the Court held that in allowing the Texas Democratic Party to mandate whites-only primaries, Texas violated the Fourteenth Amendment rights of its Black citizens — reversed decisions of lower federal courts dismissing the case. 

The Court’s record on labor rights is also spotty. In Lochner v. New York, the Court held that the Fourteenth Amendment’s Due Process Clause guaranteed a substantive right to contract, a right incompatible with state laws setting upper ceilings on the number of hours certain kinds of laborers — in this case, bakers — could work. In the mid-1930s, the Court invalidated a raft of New Deal legislation, prompting President Roosevelt to introduce an abortive plan to pack the Court.

Among the most shameful of the Court’s decisions concern state laws authorizing compulsory sterilization of people in states’ custody. In Buck v. Bell, the Court upheld a Virginia law allowing forcible sterilization of mental institution inmates. Justice Holmes’ opinion contained this now-infamous line: “Three generations of imbeciles are enough.” It was not until almost twenty years later that the Court, in Skinner v. Oklahoma, held that the forced sterilization of criminals was unconstitutional. I could go on.

State governments are also not as often wrong from a liberal point of view as is commonly believed. Indeed, in many areas, states have been in the vanguard of progressive change.

Wyoming became the first state to grant women the right to vote in 1890, thirty years before the passage of the Nineteenth Amendment. By then, fifteen states had already granted women full suffrage, with an additional eleven granting partial suffrage.

While the Supreme Court got it horribly wrong about compulsory sterilization in Buck, the state courts often got it right. Years before Buck, the highest courts of Michigan and New Jersey held that laws authorizing compulsory sterilization of the mentally ill in public institutions violated the Fourteenth Amendment’s Equal Protection Clause. Similarly, a Nevada court ruled that a compulsory sterilization law that applied to male prison inmates violated the Nevada constitution’s cruel and unusual punishments prohibition.

Besides the fact that the states are not always enemies of individual rights and equality, and the federal government not always a friend, there are additional reasons why state-level progressive agendas may be more successful than national ones.

By design, the authority of federal institutions is limited: Congress can only pass legislation under one of its enumerated powers, and federal courts only have jurisdiction over a limited range of cases. Not so with the states.

As long as its exercise is compatible with their own and the federal constitutions, states are free to use their “police power” — the power to legislate in the interest of security, health, safety, morals, and welfare — to pass laws on just about any issue under the sun. Similarly, state courts are courts of “general jurisdiction,” empowered to adjudicate issues governed by both state and federal law. Finally, most state constitutions are much easier to amend than the federal constitution, allowing for more rapid policy experimentation.

Nor are policies pioneered by one state necessarily confined to that state. The idea of “laboratories of democracy” is that if a state’s experiment is successful, it will be emulated by others. In truth, there is more than just admiration at play here. The reason that California’s announcement that it would ban the sale of new gasoline-powered cars by 2035 instantly became nationwide news is that if California were a sovereign nation, it would be the world’s fifth largest economy. Policies adopted in California have a nationwide and, indeed, a global impact, whether other states like it or not.

It will be replied that state experimentation is all well and good, but certain individual rights and equality protections should not be left to the states because there is no good reason that they should vary across state lines. Women are the same in Alabama as they are in New York, and hence their claim to reproductive freedom is no less strong in the former than in the latter. The point is undeniably compelling. But recognizing the value of federalism does not require abandoning the effort to nationalize or even constitutionalize rights. Rather, it gives liberals more opportunities to push their agenda forward — even when the federal institutions are not particularly receptive to it, as seems to be the case today.

The basic problem Americans face is that the founders gave us a remarkably terse, frequently ambiguous Constitution, and then they made it very difficult to amend. The few successful amendments are usually no less terse and ambiguous than the original document. This means that there will always be deep disagreement about which rights the federal Constitution protects. Given this reality, it behooves liberals to accept that not all courts will be the Warren Court, that not all Congresses will be the Congress that passed the Civil Rights Act of 1964, and that federalism affords viable alternatives to bring about progressive change.

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A “Rogue Court”?: Integrity and Majority Rule

photograph of curtain drawn to inner chamber

Ever since the decision in Dobbs was handed down, there’s been a great deal of ink spilled about the Supreme Court “going rogue.” Whatever image those words are meant to conjure, it can’t be that simply by contradicting popular opinion justices act wrongly. Indeed, to do its job and fulfill its essential function – safeguarding individual rights and acting as legal backstop and ultimate umpire for conflicting claims to basic protection – the High Court must be able to act in opposition to the majority’s will. We should all be relieved that when it comes to who receives a fair trial or who may cast a ballot, we don’t simply put the matter to a vote (or do we?).

We think that the fundamental liberties that citizens enjoy are not the kind of things that should expand and contract with the ebb and flow of favorable representation in Congress.

As Evan Arnet argued yesterday, sometimes the sausage that our legislature – held hostage by party politics – produces simply won’t do. Everything can’t depend on a mere up or down vote; some things must be guaranteed. Enter: The Supreme Court.

In no small part, our need for the High Court to chaperone the legislature stems from the fact that the masses are deeply misguided when it comes to the facts on the ground (see The New York Times’s recent moderated discussion with pro-life and pro-choice focus groups where multiple respondents on both sides thought that abortion was more physically dangerous than childbirth for a woman and estimated that 30-40% of abortions take place after the first trimester – when in reality it’s less than 10%). What we require is a final ruling made by legal experts standing above the political fray who see the matter clearly and can anticipate the legal implications that we mere mortals hardly perceive.

So rather than the common complaint about the justices being out of step with the court of public opinion, the real trouble with the Courts’ recent pronouncements must lie elsewhere

– perhaps in its shifting attitude toward the separation of church and state (Kennedy v. Bremerton School District), toward precedent (Dobbs), and toward interpretive consistency (Bruen).

These are all significant complaints to be sure, and each warrants careful consideration. But rather than taking up these criticisms in isolation, I’d like to point to an overarching picture that paints these seemingly disparate complaints as a constellation of related concerns. The public’s historic lack of trust in the Supreme Court may indicate, as Ronald Dworkin once suggested, that “Integrity is our Neptune” – a celestial body we discover only by first recognizing that it’s missing.

So, what is integrity? Simply put, integrity demands that the law be created and adjudicated in a consistent way. Dworkin insists that proper legal interpretation requires commitment to moral coherence. We should strive to comprehend our legislative and judicial history as one of continuity. Judging, Dworkin claims, is not unlike being a writer of a chain novel. You’re tasked with interpreting the major, minor, and latent themes running through the narrative to date and contributing to that tale in a way that does honor to what’s come before – you situate decisions so as to present our legal history in the best possible light.

Ultimately, integrity represents a compromise between the weightlessness of a living constitution and tyrannical rule of a dead hand from a bygone era.

Both of these can devolve into judicial activism and thus commit the gravest of grave sins: legislating from the bench – either by a complete reimagining of the Constitution and our legal history, or by an outright refusal to appreciate the needs of our evolving and ongoing story.

What makes integrity important? The Supreme Court’s legitimacy relies on appearances. We expect justices to rule according to the law and not their politics. The trouble is that it’s extremely difficult to disentangle the two. Do one’s legal convictions shape their political leanings, or does one’s politics dictate their judicial positions? Demonstrating that fidelity to law comes before party loyalty requires a kind of sacred devotion to impartiality and detached public justification (or perhaps simply a renewed commitment to better covering one’s tracks). For if judicial review – the power of unelected judges to strike down the popular will – is exposed as nothing more than partisan warfare by other means, then the game is lost and the lie of democratic representation is exposed. The emperor has no clothes.

How do we know when the clothes (integrity) aren’t there? Dworkin offers a thought experiment: Imagine a law that made abortion criminal for women born in even years but permissible for those born in odd ones. Such a policy might accommodate the 60/40 split in public opinion on the issue.

Allowing each of two groups to choose some part of the law of abortion, in proportion to their numbers, is fairer (in our sense) than the winner-take-all scheme our instincts prefer, which denies many people any influence at all over an issue they think desperately important.

Still, Dworkin thinks, there’s something that rubs us the wrong way about such a compromise. We seem to reject the Solomonic solution of simply cutting down the middle and giving both sides a little of what they want. So what explains our discomfort? Why is this kind of “fairness” not enough? Why do we turn our nose up at “checkerboard solutions” like this one?

Certainly, the decision to kick the abortion question to the state legislatures looks an awful lot like a checkerboard solution – and one that sits uncomfortably with both sides.

It’s hard to see how that ruling fits within our judicial history that treats similar rights (similar to either the right to reproductive autonomy or the rights of the fetus) as national concerns. Such a ruling appears a significant break with traditional practice.

Just last week, Benjamin Rossi gestured at several potential futures for the current political compromise neither side finds tolerable. Pro-life advocates motivated by Body Count Reasoning (explained here by Dustin Crummett) are unlikely to be satisfied with half-measures. Meanwhile, pro-choice proponents decry the unequal burdens arbitrarily foisted upon residents of different states concerning a basic good: health. (Jim Harbaugh can encourage his players to encourage their partners to go ahead with an unplanned pregnancy and offer to adopt all those children all he wants, but the fact remains that pregnancy is not without risk and the decision to go forward is not simply about whether one has “the means or the wherewithal.”)

Unfortunately, whichever way the Dobbs fallout is eventually resolved is likely irrelevant to the larger problem. Unless and until we begin to conceive of our legislative and judicial history as a shared project of public justification, there will be no restoring public faith. Without courts committed to something like Dworkin’s idea of integrity, even term limits cannot save us.

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Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

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Constitutional Deadlock Over Privacy: A Third Way?

photograph of protest sign in fron of Supreme Court

Following the overturning of Roe v. Wade, a great deal of media attention has been focused on what comes next. The right to an abortion, granted by the original landmark case, was founded on the basis of a constitutional right to privacy. But it has already been made clear that similar rulings regarding a constitutional right to privacy, such as Griswold v. Connecticut could be at risk of being overturned as well. In addition, the Supreme Court has attracted controversy for several other controversial decisions as well, prompting proposals for how to reform the Court or how to reverse these decisions. But with confidence in the courts falling to historic lows, many such proposals would likely only make the situation worse and undermine confidence in the courts even more.

Perhaps it is time to stop worrying about what policies we want courts to protect and to start thinking about finding broad support for changes in process in the form of constitutional amendments.

The recent decision from the Supreme Court regarding abortion combined with rulings on school prayer, concealed guns, voting rights, and worries about future rulings once again reignite debates about whether and how the Supreme Court should be reformed. The impeachment of justices who some feel misled Congress has been floated, and the topic of court-packing has resurfaced again. The constitution does not specify the number of judges on the Court, so Congress could simply pass legislation creating more positions and then have those positions be filled by left-leaning justices to re-balance the Court. Term limits for Supreme Court justices would mean that there would be more turn over, preventing the Court from becoming too ideologically lopsided.

In addition to proposing reforms to the Courts’ makeup, some have proposed reforms to the powers of the Court. Some now propose that Congress strip the Supreme Court of its jurisdiction for hearing certain kinds of cases, or that legislation could be passed requiring a supermajority of justices to strike down federal laws. It has even been suggested that if a particularly controversial ruling comes from the Court that Congress or the President simply ignore it, under the constitutional theory known as departmentalism which holds that each branch of government may decide on its own how to interpret the Constitution. In addition, there are several proposals to create mechanisms for Congress to override the Court if it wanted to, not unlike Canada’s notwithstanding clause.

While many of these proposals might appease in some areas, they all have problems when it comes to putting them into practice.

After all, abortion rights proponents now find themselves in the same position as anti-abortion advocates did in the 1970s, and it took almost 50 years for them to get what they wanted. Proposals like court-packing simply do not have enough support.

It is important to note that much of the Supreme Court’s power is based on the confidence the public has in it. The Constitution does not prescribe many powers to the Supreme Court, and even its power of judicial review is based on the precedent Marbury v. Madison, and as it has become all too clear that precedents are not set in legal stone. If people do not feel like the Court is impartial, they will be less inclined to heed its pronouncements. While some would like to see justices impeached or the court packed, this would only serve to undermine the confidence in the Court from those on the right, likely prompting retaliatory measures. This would weaken perceptions of impartiality of the Court even more, effectively transforming the Supreme Court into a very exclusive legislature.

Meanwhile, having Congress override the Courts’ decisions risks undermining the commitment to minority rights.

Fundamental protections would become a flimsy thing, being reversed whenever the opposing party comes to power. Limiting the High Court’s jurisdiction risks similar problems, simply offloading the same basic problem to an alternative body that the parties will shape so as to achieve their preferred policy objectives. All these efforts to manipulate the judicial system in order to secure specific political outcomes will only undermine overall public confidence in the Court.

Perhaps an alternative to such a standoff is to stop thinking about desired result we wish courts to deliver and start thinking about broader legal principles to embed in the constitution that could appeal to people on all sides of the spectrum. The legal issue underlying so many contentious issues like Roe v. Wade is the issue of privacy. Abortion opponents charge that because privacy isn’t explicitly established in the Constitution, it isn’t protected. Rather than dealing with legal debates about implied rights, why not amend the Constitution to explicitly include privacy rights? Polls show that a vast majority of Americans are concerned about privacy issues. And with the rise of surveillance capitalism, and of AI accessing vast datasets, there may be room for broad support for proposals to embed some kind of privacy protections in the constitution.

While getting the support needed for constitutional amendments is difficult (the last amendment was ratified in 1992), the increasing importance of privacy to broad segments of American society may create room for bargaining and compromise on these issues by both the left and the right. Recently, constitutional-law David French opined that the Court’s overturning of Roe v. Wade may actually help de-polarize America. Because the pro-life vs. pro-choice debate largely centered around Roe v. Wade, sides had to defend a precedent, not a specific policy. But as French observes,

Is there a hope that you would have something along the lines of a democratic settlement to the issue that makes abortion so much less polarizing in other countries around the world? Europe, for example has long had more restrictive abortion laws than the United States, but the United States couldn’t move to a European settlement because Roe and Casey prohibited that.

Indeed, polls show that Americans have fairly nuanced views when it comes to abortion. Few people would favor an outright ban on the procedure, so it may not be so difficult to imagine a compromise proposal for adding privacy to the Constitution that would not only protect abortion rights, but other rights like access to contraception, gay marriage, and protections from online surveillance. Such a move would not only allow Americans to address newly emerging privacy issues but also settle old disputes. Abortion rights passed through constitutional amendment would also have a legitimacy that Roe never did amongst abortion opponents, preventing back-and-forth sniping at the Court for not upholding preferred policies.

While a constitutional amendment would take time and a lot of negotiation, it may yield a far more stable and broadly satisfying solution to the abortion debate compared to the previous alternatives while not undermining confidence in the Court system itself. So instead of looking to courts to reach specific policy outcomes, perhaps the attention should be focused on building coalitions of support for broad legal principles that people can agree on.

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When Courts Change Their Minds

photograph of law books in a library

In late June the Supreme Court of the United States released a bevy of opinions. Most prominent perhaps is the 5-4 decision in Dobbs v. Jackson Women’s Health in which the court overturned the famous 1973 Roe v. Wade decision. The court also, in Kennedy v. Bremerton, has done away with the long used “Lemon test” concerning the separation of church and state.

Beyond questions of whether the decisions are ethically correct, these rulings are notable because they go against established precedent. In legal systems like the United States, courts generally adhere to the doctrine of stare decisis or “to stand by things decided.” The Supreme Court has previously ruled – in both Roe v. Wade and Planned Parenthood v. Casey – that there exists an implicit constitutional right to abortion. Changing its mind is then unusual, although hardly unique to the current court. The 1954 Brown v. Board of Education is famously seen to have overturned the “separate but equal” doctrine the court had previously held in Plessy v. Ferguson. (Although, technically, the Brown ruling is more narrow, only contending that separate but equal does not apply in public schools.) Evan Butts has previously discussed some of the practicalities of overturning precedent for The Prindle Post.

Recent additions to the Supreme Court, such as Justices Brett Kavanaugh and Neil Gorsuch, are being criticized for implying (misleadingly) they would stick with precedent on rulings like Roe v. Wade.

But why should the Court be bound by past opinion at all? Imagine a scientist claiming that we should stick with Newtonian physics and not jump ship to general relativity because Newtonian physics is an established precedent – even though they agree Newtonianism is incorrect.

This would be preposterous. And yet stare decisis is often understood to imply such a burden, that, as Justice Brandeis wrote in 1932 “in most matters it is more important that the applicable rule of law be settled than it be settled right.”

Following precedent in cases where the rightness of the initial ruling is not in question is straightforward – this is nothing more than a demand for courts to interpret the law correctly. Precedent as such is superfluous here, as consistency is being ensured purely by the court deciding correctly in each case. The doctrine of stare decisis only achieves importance when it comes to ambiguous or even wrongly decided cases, and whether they should nonetheless maintain some hold over future judicial decisions.

As Justice Brandeis suggested, defenders of stare decisis justify it by pointing to its role in settling matters of law – that is, making law fair, consistent, and predictable, as opposed to mercurial.

The claim is that absent this general principle of stability, the law could change drastically with the simple turnover of judges. More practically, precedent also provides courts the legal tools to decide cases efficiently.

The value of having settled law is especially clear in cases like Obergefell v. Hodges (2015) which enshrined a constitutional right to the recognition of same-sex marriages. Agree or disagree ethically, it is clear same-sex couples can and have built their lives differently knowing that they have a right to marriage recognition. Likewise, agree or disagree ethically with abortion, confidence they have control of whether to go through with a pregnancy affects how women live their lives. These are referred to as reliance interests.

Notably, these defenses of precedent contain the seeds of their own limitation as ultimately the doctrine of stare decisis is justified on the basis of being a social good. Cases of pernicious and dubiously-decided law are weighed against the value of the law being settled. Justice Brandeis made a further point, distinguishing the weight of precedent in statutory law (made by the legislature) which can easily be overturned by later legislation, from precedent in matters of constitutional interpretation. According to Brandeis, precedent matters less when there are fewer forms of redress.

Overall, few if any defend an imperative to follow precedent for all cases – at least when it comes to rulings being made by a court of equal or lesser authority. Precedents can and do get overturned. That lower courts should follow upper courts can provide an alternative defense of following precedent even in wrongly decided cases (sometimes called vertical as opposed to horizontal precedent).

In the 2018 5-4 decision Janus v. AFSCME, the majority opinion authored by Justice Samuel Alito indicated that the current Supreme Court is especially open to revisiting previously decided matters when it believes they were wrongly decided. Justice Clarence Thomas has claimed, most recently in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, that the Court should correct “demonstrably erroneous” rulings.

Expanding Thomas’s point, one could argue that the Supreme Court should have no special obligation to consider the social value of precedent and settled law at all, and simply always make the legally correct decision.

The chief challenge with this line of argument is on what basis should a case be considered “demonstrably erroneous”? Certainly, the current Supreme Court does not have consensus that the legal reasoning of Roe v. Wade and Planned Parenthood v. Casey was wrong. (Brown v. Board of Education incidentally was a unanimous decision.) Absent strong evidence, e.g., a unified court, that a decision was made wrongly on legal grounds, the “demonstrably erroneous” standard of overturning precedent can collapse into “I think this decision was decided wrongly, and therefore I am justified in overruling it.” This reintroduces the dependence on the idiosyncrasies of specific justices that a principle like stare decisis is supposed to help limit.

Law is complex and so is legal interpretation – we should expect obviously incorrect decisions to be the exception rather than the rule. In light of this, one approach to stare decisis would be to acknowledge precedent should not be binding, but that the force of its motivating reasons such as consistency and stability of law apply especially strongly in cases where legal correctness or the proper interpretive framework is under dispute. Nonetheless, the current Supreme Court has indicated a more revisionary stance. It will become clear over the next few years how this plays out with the broader legal understanding of stare decisis in the United States.

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Why Misleading Is Wrong (but Isn’t Perjury)

photograph of Kavanaugh being sworn in with hand on Bible

In the wake of the Supreme Court’s recent ruling in Dobbs v. Jackson (where the Court overturned national legal protections to abortion rights codified by 1973’s Roe v. Wade), several justices have faced heavy criticism for comments they made during their confirmation hearings about Roe and stare decisis (the legal practice of ruling on cases according to established precedent).

According to critics, multiple justices lied during their job interviews about their commitments and principles, not only misleading the politicians who supported them, but theoretically making them liable to impeachment.

As talk show host Stephen Colbert put it, “if these folks believe that Roe v. Wade was so egregiously decided, why didn’t they tell the senators that during their confirmation hearings?”

There are at least two ways to answer Colbert’s question and, importantly, neither of them entail that any of the justices lied under oath — but that’s not to say that Gorsuch, Kavanaugh, or others didn’t speak immorally nevertheless. Consider how someone can manipulate or mislead another by carefully speaking in a way that is not technically untruthful, using insinuations, suggestions, and even silence to push their audience into believing something: in so doing, the speaker is unethically violating conventional expectations about trust and good-faith communication, even if they never speak a falsehood.

Indeed, “telling a lie” and “misleading an audience” are substantively different and although both speech-acts are unethical, only the former is clearly illegal while giving sworn testimony. But whether justices were carefully following the “Ginsburg rule” during their hearings (that requires a judicial candidate to give “no hints, no previews, no forecasts” of their potential rulings) or whether they were shrewdly avoiding a clear answer that might sour their chances of confirmation, it’s not clear that any of them lied to Congress.

In order to actually tell a lie, someone must:

1. Know the truth,
2. Assert the opposite of the truth,
3. Act with the intention of getting their audience to believe the opposite of the truth.

Suppose that Bill tells Calvin that their automatic garage door opens because a guy lives in the attic to operate its movement. This claim is not true, but if Bill genuinely believes it (violating Condition #1), then he hasn’t lied — he’s simply incorrect. Similarly, if Bill violates Condition #2 and phrases the speech act as a genuine question (“Do you think that someone lives in the attic?”), then he hasn’t lied either. And, crucially, if Bill is just making a joke or is otherwise speaking ironically (and doesn’t actually mean for Calvin to form a belief in an attic-dwelling door-opener), then he is violating Condition #3 and has also not explicitly told a lie.

But suppose that Bill simply implies that someone lives in the attic and misleads Calvin to form such a false belief — maybe Calvin asks Bill if such a person exists and Bill responds with “It is metaphysically possible for such a person to live in our attic.” This response isn’t technically false (because, although it is wildly unlikely, it is possible), so Bill hasn’t technically lied. Granted, Calvin would have to be exceedingly gullible to be misled by Bill in this way, but Bill could be guilty of trying to mislead Calvin nonetheless.

As MIT philosophy professor Sam Berstler explains in a recent paper, both liars and misleaders violate social conventions about the trustworthiness of speakers in conversations (where we typically assume that our interlocutor is acting in good faith), but only the former also violates expectations about truthfulness.

Put differently, liars fulfill conditions (1), (2), and (3); misleaders fulfill only conditions (1) and (3).

And, crucially for the present conversation, the legal definition of perjury requires that someone fulfill (2).

So, what did the SCOTUS justices actually say about Roe before being confirmed to the bench? Speaking in 2017, Neil Gorsuch repeatedly referred to the precedent set by Roe, calling precedent the “anchor of law” that functions as “the starting place for a judge”; when pressed about whether or not he accepted that a fetus is not protected by the 14th Amendment, Gorsuch replied “that is the law of the land. I accept the law of the land.” The following year, Brett Kavanaugh infamously told Senator Susan Collins in a private conversation that he considered Roe “settled law,” but in his sworn testimony he again referred to it as “a precedent of the Supreme Court, entitled the respect under principles of stare decisis” and, like Gorsuch, repeated that “the Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.”

This is clearly true: prior to June 2022, SCOTUS had indeed repeatedly looked to Roe’s precedent as the law of the land — but SCOTUS is also empowered to overrule precedent: as Gorsuch said, it is only the starting place for a judge.

Which means that Gorsuch and Kavanaugh’s sworn testimony (as well as that of the other four justices who overturned Roe) is fully compatible with the present Court overturning that precedent: it was the law of the land during their confirmation hearings, but now it is not.

Put differently: because no Supreme Court justice explicitly asserted that “I will not ever vote to overturn Roe,” none of their speech acts fulfill Condition #2 and so qualify as neither lies nor perjury.

However, to reiterate, this does not mean that the justices are above reproach here (despite what some pundits have suggested): misleading your audience — as Gorsuch and Kavanaugh (and others) apparently did by giving well-crafted, technically-not-perjuring responses that still prompted senators to form false beliefs about their later intentions — is unethical in a host of ways. In particular, being misleading violates expectations about your trustworthiness and integrity: this is something close to lying, even though it is not illegal. A key difference, however, is that your audience also bears some responsibility for their naivety, ignorance, or lack of epistemic diligence that allowed them to be duped (something particularly damaging to the credibility of the justices’ audiences, given that U.S. senators should be familiar with the stereotypical double-speak of lawyers and politicians — to say nothing of the other evidence available prior to the confirmation votes).

But there’s little formal recourse for shamefulness.

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Bye Bye Balance: Dobbs and the Erosion of Compromise

photograph of rocky tectonic gap in Iceland

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Friday morning, in their ruling on the case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court struck down the right to abortion in the U.S., limiting the freedoms of roughly 36 million people. Because a draft of the opinion, written by Justice Samuel Alito, had been leaked by an unknown source in May, the decision to remove what the Court saw as an incorrectly perceived right to abortion was unsurprising.

The arguments supporting the Supreme Court’s decision are, in my opinion, underwhelming. To decide the Dobbs v. Jackson case, the Court examined several jurisprudential points. At its core, however, was the question of whether the U.S. Constitution enshrines abortion as a right. Unfortunately, according to five of the nine justices – Thomas, Alito, Kavanaugh, Gorsuch, and Coney Barret – the answer was no.

The Supreme Court’s musings on abortion have been covered here at The Prindle Post before (Who’s Harmed by Abortion?, What If a Fetus Were a Person?, Roe v. Wade and the Meaning of a Right, Constitutional Interpretation in the Roe Reversal, to name just a recent few). I don’t want to rehash or redo what others have already said. Instead, now that we have the official decision, I want to look at one of the points highlighted by the minority Justices – Breyer, Sotomayor, and Kagan. That being the erosion of balance. Before doing so, however, a quick recap.

The 1973 ruling in Roe v. Wade sought to strike a balance between banning and allowing abortion. To do this, the Court used the three-trimester approach. In trimester one, the state couldn’t interfere with a decision to terminate a pregnancy. In trimester two, state regulation was allowed if it aimed at protecting the pregnant person’s health. This second trimester lasted until a fetus obtained the capacity for a meaningful life outside the womb – i.e., viability. Once reached, the pregnancy entered the third trimester, where the state could ban abortions, except when necessary to protect the pregnant person’s life or health.

Resting the permissibility of abortion upon viability was far from perfect, and plenty argued both before and after the judgment that a fetus’ perceived right to life didn’t override the pregnant person’s right to bodily autonomy (Judith Jarvis Thomson’s A Defense of Abortion, published two years before Roe, being one of the most famous).

Whilst neither side of the debate was entirely enthused with the ruling, the decision somewhat defused tensions regarding abortion’s legal permissibility. As Larry David noted, “A good compromise is when both parties are dissatisfied” and this is what Roe seemed to achieve.

The Supreme Court reaffirmed the decision in the 1992 case of Planned Parenthood v. Casey. Since then, it has been the law of the land. That is until June 26th, 2022, and the Dobbs ruling.

The Dobbs ruling undoes this balance between interests. By making individual states the arbiters of abortion access, the Supreme Court has eroded the delicate balance it struck in Roe and Casey between the state’s interests in protecting life and in protecting pregnant people’s bodily autonomy. The minority Justices note this in their dissenting opinion, writing:

Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).

This reluctance to engage in compromise is arguably symptomatic of the broader polarization in the political sphere over the past several years. This is something to which, in theory, the Supreme Court should be immune as it is meant to be apolitical. Indeed, even suggesting that the Court has devolved into another partisan branch of the U.S. government generates strong reactions, such as Coney Barrett’s response to that very accusation: “This court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.” However, this desire for apoliticality from our Justices might be too much to ask. After all, they are only human and while they may do their best to set aside their baggage when they don their robes (and I’m not convinced they do), how effectively that can happen is a matter of debate and, if recent polling is to be believed, great doubt.

This rejection of compromise is a problem because we are all of us individuals with our own ideas and opinions. Yet, our survival and ability to flourish are dependent on our capacity to rely on others and live within a society. As a result, there is a constant tension between wanting to do things our way and needing other people.

This makes compromise essential. When our interests clash with those of our neighbors, we work towards a mutually acceptable outcome in order to find balance. Neither group may get exactly what they want, but they might get something approximating it.

Of course, this can only work in circumstances where it is possible to accept compromise, which isn’t true in all cases. If I don’t want to kill anyone, and my neighbor wants to kill ten people, the answer isn’t to kill five; it’s to call the police. Abortion would seem to be one of those instances where compromise might not be on the cards, especially for those at the polar ends of the debate. Right-to-lifers might argue that no abortion, at any point, is acceptable, and to compromise is to be complicit in murder. Pro-choicers might respond that any infringement on bodily autonomy, for any reason, is a grave injustice.

In this sense, Roe and Casey’s overturning symbolizes something growingly problematic: the sense that compromise is a negative thing. That it shows weakness rather than an ability to move forward and make incremental changes towards something better. A capacity to not let the perfect get in the way of the good.

This, of course, is not the biggest issue with the Dobbs decision (that would be the mass infringement on people’s fundamental human right to bodily autonomy). However, Roe and Casey’s overturning, based on dubious legal reasoning, throws away a delicate balance between competing interests, one which may not be recreated for decades, if ever at all.

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The Roe Leak: Of Trust and Promises

photograph of manilla envelopewith "Top Secret" stamped on it

There is plenty to be said about the leak that brought us the news that the Supreme Court was considering overturning Roe vs. Wade, the case that legalized abortion throughout America. The most important issue is that, if this draft becomes law, many people will be forced to either give birth when they do not want to (and giving birth in America is dangerous compared to other wealthy countries, especially for women of color), or they will have to seek an illegal abortion. Not to mention that banning abortion does not decrease the number of abortions, it just makes them more dangerous (because they are illicit and less well-regulated).

My focus here is not on that issue, it is on the comparatively unimportant issue of whether whomever leaked the draft should have done so – though I won’t find an answer, I will explore what sorts of factors might help decide this. (Matt Pearce in the LA Times does an excellent job of explaining the various competing factors; there is no way that I could cover everything in this short article, and I will inevitably omit important factors.)

The leak itself has caused an outcry. SCOTUS Blog described the leak as “the gravest, most unforgivable sin.” (This might be a bit strong, considering the Supreme Court has previously ruled that slaves had no rights and Japanese-Americans could be interred in concentration camps.) The leak has also been described as an “actual insurrection” (seemingly by somebody who does not know what words mean) and as an obvious attempt to “intimidate.”

Others have offered more measured, reasonable, criticism. John Roberts, the Chief Justice, said that this leak was a “betrayal of the confidences of the Court [that] was intended to undermine the integrity of our operations.” He also noted that there was a “tradition” of “respecting the confidentiality” of such drafts, calling the leak a “breach of trust” that was an “affront” to the court. (It’s worth pointing out that leaking court opinions is not illegal – no law forbids leaking itself.) I want to suggest that even if everything Roberts has said is true, the leaker still might have been right to leak the draft.

Here is one starting point to get to Roberts’s position. Clerks apparently promise the court confidentiality, and to break a promise is itself wrong. After all, this is a reasonable promise to expect clerks to make (and this following consideration applies to judges, too): deliberating in an open way, where you can communicate trustfully with your colleagues, in theory helps to ensure open, fruitful conversation. (If a justice leaked the draft, they might not have made a promise, but the reasons to ensure open discussions apply to them.)

How exactly promises work is a topic of debate amongst philosophers, but one illuminating approach is offered by the recently deceased Joseph Raz that draws on the notion of “exclusionary reasons.”

As Raz sees it, what we should do is determined by what reasons we have. Ordinary (first-order) reasons help us decide what is best: if eating the cake will give me the nutrition required, and I want to eat it, then I should eat it if no reason exists against eating it. Now, if there is a reason not to eat it, for instance I have already had one portion and I don’t want to offend my hosts, then perhaps I shouldn’t eat it. Whether I should eat it depends on how these reasons weigh up: is it more important that I get the necessary nutrition and do what I want, or that I avoid any risk of offending my host. Promises are not like that: if I promised my wife I would only have one slice of cake, then the facts that I want it and it supplies nutrition, do not count. The promise excludes the countervailing considerations.

So, if there was a promise not to leak, then even if there are reasons to leak, perhaps one should not.

Yet even if the leak would breach a promise and constitute a betrayal, this might be the right thing to do. If a friend tells you that they are cheating on their partner, you might betray your friend’s trust by informing that partner – and trust amongst friends is important –  but tell that partner might still be the right thing to do: your friend’s partner does not deserve to be treated like this, and that might outweigh the fact that you promised your friend you wouldn’t tell.

Here are two explanations for why this might be okay. If your friend had said “I have a secret, promise me you won’t tell anybody?” you might think they are, say, planning a surprise party for a friend or thinking about a career change. You might reasonably think your promise has a certain scope, restricted to trivial things. If your friend had confessed to being a notorious murderer, you wouldn’t reasonably be expected to keep that promise, nor need you keep the promise when he tells you he has cheated on his partner. Likewise, in the case of the Supreme Court leak, we have to judge whether the promise to keep things confidential extends this far: does it cover overturning a law that has been settled for five decades, that will affect millions, and which many of the Supreme Court justices (even recently) suggested they would not overturn?

Or, perhaps sometimes it would be wrong to leak (because you promised not to) yet the best thing to do all-round is to leak it. This is a bit like the ethical problem of dirty hands: where to ensure the best result, somebody had to do something wrong. It might be that torture is wrong, yet finding out where the bomb is hidden is so important that somebody should do the awful thing and torture the suspect (this example is simplistic: torture is very ineffective). Likewise, perhaps leaking is wrong and damages the court, yet letting Roe vs. Wade be overturned is too dangerous, and somebody should get their hands dirty, do the wrong thing, and leak the draft for the greater good. This would be, in a way, deeply admirable.

The topic is complex, my point here is just that the fact that leaking is wrong, or the fact it betrays an institution, is not enough to get us to the conclusion that it shouldn’t be done. Sometimes – as tough as it may be, as much as it may damage one’s own moral standing or future career – people should betray others.

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On Judicial Philosophy: A Reflection on Judge Jackson’s Hearing

photograph of Ketanji Brown Jackson with law books behind

Judge Jackson’s recent confirmation hearing raises a variety of questions about the nature of judicial philosophy and what relationship it has with judicial “methodology.” In her opening statement, Judge Jackson outlines a three-step methodology to how she approaches each case: to clear her head, to examine the data, and to apply the relevant laws if it is her job. When pressed and questioned about what her philosophy is, she candidly maintained her judicial philosophy is her judicial methodology.

This has received a variety of attention. Some think her response is indicative of her defying being labeled by others. Others think she is required to give us her judicial philosophy, that her methodology is the bare minimum of what to expect from a judge. Indeed, some were analyzing and predicting what the judicial philosophy would be based on her previous remarks and experience.

While Judge Jackson’s response has been a highlight of Republican criticism, it would be rash to infer this question is pointless, a divisive tactic asked for the sake of moral grandstanding. It is worth addressing the nature of one’s judicial philosophy, its importance, and asking whether it is equivalent to a methodology.

Let us presume that a judicial philosophy comprises the values and stance from which one sees and evaluates judicial cases. In this way, a judicial philosophy is value-laden and often prescriptive of how to interpret the law and act. In contrast, a methodology is often only descriptive. This gives the impression that a methodology is fair, insofar as it does not necessarily subscribe to values and prescribe responses.

This distinction maps onto our standard use of the terms and some intuitive examples. Consider how an ethical philosophy not only describes but evaluates as well as prescribes certain actions. For instance, deontology describes and evaluates actions according to the well-known categorical imperatives, the rule of universalization, and the intrinsic value of rational agents. When the deontologist maintains “Don’t lie,” it is based on a value of rational agency and is universal in its scope and demand.

A methodology, in contrast, is procedural. Much like the surgeon who must conduct several steps to perform surgery, a methodology describes the steps of parsing data and conducting certain actions. Moreover, while a methodology evaluates appropriate actions according to the issue at hand, a methodology does not have certain prescriptions built-in (aside from, perhaps, the general prescription to act in accord with the role one stands in; consider how the Hippocratic Oath is an imperative to do no harm). Where a scalpel is required in some situations, an IV is required in others — it depends on the patient’s need.

If this distinction is plausible, then it follows that a judicial methodology and judicial philosophy are not equivalent. This is not to say, however, that the two cannot overlap. For every judicial philosophy can avail itself of a methodology, and vice versa. So, we need some clarity on what Judge Jackson means when she maintains her philosophy just is her methodology.

Would it be a problem to only maintain a judicial methodology without a judicial philosophy? At first blush, it would seem like a fortunate state of affairs if the judge were to be impartial like the surgeon with a methodology. One might argue by analogy that the judge collects the relevant data with a clear mind and applies the relevant tools according to the need. If the brain surgeon is not trained and equipped to conduct heart surgery, one would hope he denies the request to operate and calls his colleague! So too with the judge. Impartiality, after all, is necessary for a judge to be just.

Indeed, this cleanly depicts how Judge Jackson describes her own three-step judicial methodology in more detail:

  1. Remain neutral: to proceed “without fear or favor.” Before approaching any case, she clears her head of biases and prejudices.
  2. Evaluate the data: to receive all of the appropriate inputs for the case (e.g., hearings, factual records, etc.)
  3. Apply the law: to exercise the “Interpretation and application of the law to the facts in the case, and this is where I am really observing the constraints on my judicial authority.”

Regarding this last step, she may look at her jurisdiction to see if it is her place to hear the case. Like the surgeon who coolly evaluates cases and responses, one might think Judge Jackson’s methodology is sufficient for her role as a judge.

However, the surgical analogy fails on precisely the points it should help. On the one hand, it is questionable that both the surgeon and judge may coolly evaluate data. Does not collection of data require an evaluation of the case’s salient features? It would seem so, though perhaps this is a common problem. If so, it would be what I like to call a ‘work hazard’ for simply engaging in this activity and thus not uniquely problematic to this particular issue. On the other hand, the respective standards which the surgeon and judge consult and the corpus to which they apply these decisions are different. For the Constitution is not self-interpreting and is far from clear at many points. For example, whose right is it to bear arms? Moreover, the application is also an issue. For example, does the prohibition of ‘cruel and unusual’ punishment preclude the death penalty today? Both of these issues of interpretation and application require values to guide the judge.

To illuminate how a judge might offer different sentences based on different judicial philosophies, consider two prominent philosophies:

Originalism: Interpreting the legal text(s) according to the words and original context, most prominently the original author’s meaning and public understanding of the text.

Prudentialism (also known as pragmatism): Interpreting the legal text(s) according to the respective values and interests at play at the time of the case (Justice Breyer, whom Judge Jackson is to replace, exercised this methodology).

Based on the philosophy, one will have different answers to the above questions. According to originalism, “cruel and unusual” punishment might not preclude the death penalty. In other words, this could lead a judge be open to giving a sentence of the death penalty. Based on prudentialism, “cruel and unusual” may very well preclude the death penalty. Individuals’ sensibilities of what counts as cruel may differ from the original authors (e.g. are there really any “humane” methods of executing a human?) In other words, this could lead a judge to avoid such a sentencing. Indeed, based on the sharp decrease in numbers of executions since ‘99, there is good reason to think that sentimentality has shifted for what classifies as “cruel.”

I would suggest, then, that a judge not only ought to have a judicial philosophy but is required to have a judicial philosophy. A judge ought to have a judicial philosophy because it is both an obligation of the role and prudent to make explicit one’s values and interpretive methodology. A judge is required to have a judicial philosophy if only out of operational necessity. The Constitution and law must be interpreted and applied, and to take a stance on ‘no judicial philosophy’ is perhaps to take a stance on a nascent philosophy.

We could, of course, attempt to deduce Judge Jackson’s judicial philosophy. Some have pursued this route – she clearly maintains that “adherence to text is a constraint on my authority. I’m trying to figure out what those words mean as they were intended by the people who wrote them.” While such comments as this may be indicative of an originalist position, I find it more helpful to see how Judge Jackson’s minimal position is prudent and not unprecedented.

Judicial philosophies can unnecessarily be understood to signal a political philosophy. If offered in this forum, her position could very well be misunderstood and utilized to characterize her in different ways. This would not be unlikely, given some of the grandstanding and loaded questions from many senators. And Judge Jackson was admirably keen to avoid these issues and “stay in her lane.” So, regardless of whether a candidate is obliged to inform the committee or public of her position, it seems to be cautious in some respects.

Such a brief response is also not unprecedented. Consider, for example, Justice Sotomayor’s opening statement for her hearing before the Judicial Committee. When describing her judicial philosophy, Sotomayor stated that it’s

Simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress’ intent, and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court.

Justice Sonya Sotomayor

It could very well be that this is a stock and trade answer for such a forum. Moreover, it is an intentionally minimal answer and thus, a cautious maneuver.

For all the prudence and precedence, however, the point stands: a judicial philosophy is distinct from methodology, and the former is necessary for a judge. While a judicial philosophy is perhaps part of a judicial methodology, it will not be the whole parcel.

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The Nomination of an African American Woman to SCOTUS Is More Than a Promise

photograph of Supreme Court facade "equal justice under law"

Now that Justice Breyer has announced his retirement, President Biden has decided to fulfill his promise to nominate an African American woman for the Supreme Court of the U.S. (a.k.a. SCOTUS). Many Republicans and conservatives have criticized his decision, offering one or more of the following reasons. For example, libertarian scholar Ilya Shapiro contends that the president is not committed to nominating the “objectively best person” for the job but rather a less qualified African American woman. Others criticize the president’s decision by focusing on a poll indicating that about 76% of Americans wish the president considers “all possible nominees,” and only 23% prefer that he follows through on his promise. Still, others, be they liberal or conservative, might claim that by committing himself to nominating an African American woman, he is discriminating against better qualified candidates.

I will argue that President Biden has not only the right to nominate an African American woman for SCOTUS, but, if he chooses a suitable candidate, he will be doing a great service to our country. The appointment of an African American woman to SCOTUS will offer a neglected but important perspective to help our nation grapple with present and forthcoming challenging decisions. Since Supreme Court Justices address highly controversial and politically sensitive issues that affect everyone, I maintain that a suitable candidate must possess, above all, moral integrity and good judgment for doing the job right.

Unlike our elected officials whose moral integrity, while desirable, is not necessary for performing well in office, we expect Supreme Court Justices to transcend their personal biases and prejudices in rendering impartial and fair decisions. Regrettably, oftentimes they fail to do so. Despite these failures, the justices abhor being perceived as politicians because presumably they do not aim at promoting policy outcomes to benefit most citizens or the interests of some. Instead, they justify their decisions by recognizing people’s political rights as found in the letter and/or the spirit of the constitutional text.

How can the president, his advisers and the Senate ascertain whether a nominee possesses moral integrity and good judgment? If the nominee be a judge, which in fact she need not be, those doing the vetting can look into her past judicial record. Also, they might go about querying those who have known the nominee in her different social roles to ascertain her moral character. Given the polarized nature of the Senate, lawmakers – especially Republicans – will try to find fault with a candidate’s moral standing, question her judicial decisions, and scrutinize her judicial philosophy. Despite its shortcomings, I can think of no better approach because, like our adversarial legal system, more often than not it works. For some, such a partisan and inquisitorial approach might not live up to their ideal for selecting “the objectively best candidate,” but we are not living in an ideal republic. We are living in an imperfect, but still perfectible democracy.

Some insist on what they conceive of as “the objectively best Supreme Court candidate.” Their conception, however, is just a sham. There are only better or worse candidates. In what sense could we claim that a person is a better candidate than another? In the sense of someone having a superior educational pedigree, for example, by having graduated summa cum laude from a prestigious law school. Or she might have clerked for a reputable judge. Or she is a prolific legal scholar. Or she possesses an envious intellectual IQ. But “better” could also mean having an exceptional emotional intelligence evidenced by exercising good judgment in her legal decisions and/or in her legal scholarship. Or she might have shown exemplary moral integrity in her different roles in society. Or she has demonstrated commitment to living up to the ideals expressed not only in the Constitution but also in the Declaration of Independence to make this a better world for all.

Of course, some might argue that the above is a false dilemma. The president could nominate a person who meets all of the already-mentioned conditions: better credentials, exceptional moral judgment, and integrity. Perhaps, but our moral judgments and integrity are conditioned, in part, by who we are and by our lived experiences. And the unique voice of African American women has been conspicuously absent from SCOTUS.

Suppose that we need to select between two candidates for SCOTUS. One has an extraordinary intellectual IQ with an exceptional educational pedigree. However, one candidate has shown substantive moral failures, such as having engaged in ubiquitous plagiarism while in law school, or having expressed racist, misogynist, or xenophobic views, or having supported special interest groups at the expense of the greater good. The other candidate has an average intellectual IQ with a solid, but not necessarily extraordinary educational pedigree. Yet she is known for having impeccable moral integrity and good judgment in her public and private life. Whom should we choose for SCOTUS? I would choose the latter because extraordinary intellectual virtues do not guarantee having moral integrity and sound moral judgment.

Next, I argue that those who prefer that the president listens to how most Americans feel about considering “all possible nominees” rather than an African American woman are not offering a compelling argument. First, they could be mistaken about their beliefs, or they might be biased against selecting an African American woman. The president’s advisers and members of the Senate are in a better position to determine who the suitable candidate would be for the greater good of the nation. Since the president has the right to nominate any candidate for SCOTUS that he thinks would be best for all, he can reasonably use race and gender, among other criteria, to narrow the pool of suitable candidates. He can justifiably do so by offering the following two reasons. He might argue that by selecting an African American woman for SCOTUS he is remedying past wrongdoings, and that by having a diverse composition of SCOTUS that mirrors our cultural milieu he is promoting the greater good of an inclusive society. 

To those who argue that, by having made such a promise, the president is politicizing and discriminating against other better qualified candidates, I will offer the following two responses. First, nominating a Supreme Court candidate has always been political. And second, in approving any nominee, one would be discriminating against other potential nominees who were not considered or selected. Discrimination is unavoidable. The issue is whether such a discrimination is justified for our greater good. Part of the greater good is to try to correct past injustices against members of excluded groups, such as African American women, who have been substantively harmed. The president and members of the Senate have not only the legal right to try to overcome past wrongs against any unfairly treated groups but, more importantly, they have the moral duty to do so. 

Lastly, one would be ill-informed to suggest that there is an insufficiently large pool of African American women from which to choose a suitable candidate for SCOTUS. I have reason to believe that such a pool exists. Also, I am sure that there are other potentially well deserving nominees who could represent the rich and diverse cultural experience of our nation, such as Native or Asian Americans, Latinx, or members of the LGTBQ+ community, to mention only a few.

An African American woman will bring a unique experience to SCOTUS to address many of our pressing legal and political issues for generations to come. To those who are skeptical about considering race or gender for membership in SCOTUS I can only say that, given our racist and misogynistic history, race and gender have mattered for the wrong reasons in the past. I can only hope that both might matter for the right reasons nowadays: to bring an important and neglected voice to SCOTUS for the benefit of all. Even if we were to accept that our Constitution is race- and gender-blind, those who have the power to interpret it are not.

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A Pause on Rights: Canada’s Constitutional Clause

photograph of interior of Canada's House of Commons

Imagine a world where overturning Citizens United could be done with a simple act of Congress. According to polls, 88% of Americans hailing from both sides of the aisle would back a constitutional amendment to overturn the decision. But why does it take a constitutional amendment? Because the U.S. Supreme Court ruled that political donations constitute free speech, and because corporations have a constitutionally protected right to free speech, including unlimited donations. Since changing the U.S. Constitution is exceedingly difficult, this is not likely. But what if Congress could simply override the Supreme Court and say that there are limits to such forms of free speech. Canada has such a mechanism in its constitution, and it is starting to raise serious ethical concerns.

All rights in Canada enshrined in the Charter of Rights and Freedoms are already subject to “reasonable limits,” an ambiguous phrase whose meaning must often be determined by courts. However, under section 33 of the Charter, the federal Parliament of Canada or a provincial legislature can declare that a piece of legislation will operate notwithstanding the Charter. So, if a court rules that a law violates the Charter, a legislature with a simple majority can say that the law will remain in force for up to five years before the legislature must revisit the question and potentially renew the exception. In essence, it can put individual rights on pause for half a decade at a time. The clause doesn’t apply to democratic rights or mobility rights, but legal rights concerning detention, trials, punishment, and fundamental freedoms like freedom of association, peaceful assembly, and free speech are all fair game.

The clause has been called “uniquely Canadian,” and would no doubt be controversial in the United States. It could be used to limit political donations or enact stronger gun control legislation, but it would also be easy to limit protest or engage in practices that might be considered cruel and unusual. Created as part of a constitutional bargain to appease the provinces, the clause has almost never been used and has always been controversial. The Charter is highly prized by Canadians, and so the idea of overriding it is typically politically perilous. Nevertheless, in the last three years there have been about as many threats to use it as there were during the first eighteen years of its existence or the eighteen years after that.

The latest controversy involves Premier Doug Ford of Ontario who has threatened to invoke the clause in response to the courts striking down election finance legislation that the Ford government had passed, limiting third-party advertising for a period of one full year from an election (prior to this, the law restricted spending six months before the election). Typically, these third parties are supported by public sector unions which tend not to support Ontario Conservatives, so the move to use the clause in this case, described as using a “sledgehammer on a gnat,” appears even more controversial as it seems to politically benefit Ford. (Ford had previously threatened to use the clause in 2018 after his government unilaterally changed election laws in Toronto during an election.)

In other provinces since 2018, the threat of invoking or actually invoking the clause has been a response to issues relating to public funding for Catholic schools, legislation requiring vaccination, the use of religious symbols in the civil service, and, recently, protecting the French language in Quebec at the expense of minorities in the province. This increasing willingness to use the clause, and use it more frivolously to pre-empt a court decision before it is even made, is a cause for concern. As Justin Trudeau’s former secretary puts it, “what’s at stake here is whether the ultimate arbiter of your Charter of Rights and Freedoms is the Supreme Court of Canada or your provincial premier.” But “don’t democratic societies put minority rights into inviolate foundational documents precisely because they’re politically tempting to violate?”

Indeed, Canada has recently seen exactly what can happen when the rights of minorities are ignored for the sake of a political majority, and there are plenty of other historical examples in Canada where rights have been violated. So obviously, there are ethical concerns about the clause. So why keep it? Originally, it was thought that the clause would only be used in non-controversial circumstances because it would be so unpopular to use it otherwise. However, for those who support the clause, there are two important factors to consider. The first is that the clause is considered to be an important check on judicial review.

While the Canadian Supreme Court does not have the same partisan tinge that it’s U.S. counterpart has, in the Canadian legal framework, Parliament is supposed to be supreme, meaning that what it says goes rather than the rulings of unelected judges. Some who support the clause argue that it is ultimately one of the reasons the court is less partisan; judges will be less activist and partisan if they know they can be so easily overridden. Indeed, with such a clause in the U.S., there might be less concern about when certain justices retire. Another reason why the clause is supported goes back to part of the reason it was created: to allow provinces to opt out for the sake of balancing collective rights.

Quebec has used the clause the most, typically defending its usage by claiming it is needed to protect the French language. Long concerned about declining usage of French and eventually becoming assimilated into English Canada, Quebec’s defenders seek to protect collective French community rights over individual rights to secure what Quebecers consider to be a distinct society in North America. Thus, they claim that the clause serves a vital moral good.

On the other hand, critics might charge that this simply amounts to securing the rights of the majority over the minority by bypassing individual rights. Indeed, imagine any state simply choosing to ignore Roe v. Wade simply because it would be a popular move to do so. To that extent, the clause has raised new issues of moral concern as provinces now seem more willing to use it, even for things other than “non-controversial issues.” The concern now is that the more it is used, the more it will be overused for the sake of convenience and political gain rather than as a last resort.

The moral issue for Canadians reconsidering the clause after almost forty years of existence is: How should collective and individual rights be balanced relative to each other? And how might these calculations change when a government threatens to use it? Experts believe that a move like Doug Ford’s will be unpopular because it carries a lot of political baggage. On the other hand, Canadians are famously apathetic about politics and rarely turf one-term governments. It remains to be seen whether Canadians will be keen to defend the Charter from clause users come election time. I’d be skeptical that Ford’s use of the clause becomes a major election issue a year from now. But the moral danger is that a constitutional tool capable of doing something so potentially harmful slowly shifts from a taboo to a norm fueled by populism. The moral task for the public is to re-evaluate how comfortable we are with this and under what conditions we consider the clause’s use acceptable.

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Justice Breyer and Strategic Retirement

photograph of a contemplative Justice Breyer at a speaking engagement

Though President Biden’s election win is still fresh, many political strategists and advocates are already thinking about the 2024 election. Amid the various areas of concern, the increasing conservatism of the Supreme Court has become a central focus for Democrats. Serious consideration of expanding the Supreme Court is becoming increasingly unlikely. In its place, a wave of calls for Justice Breyer’s resignation has followed. Calls for Supreme Court justices to retire are not new, but the fervor in these renewed calls is considerably more intense. These voices raise significant ethical issues surrounding the Supreme Court and the political duties of its justices.

Are calls for Justice Breyer to retire ethical? Is age a sufficient reason to call for one to step down? Should political concerns influence the actions of Supreme Court justices?

Calls for Justice Breyer’s retirement are often directed as appeals to Breyer’s ethos. His refusal to retire has been labeled as out of touch, supremely consequential, and essential to safeguarding his legacy. Many of these appeals have the appearance of being ageist, motivated by prejudice about his getting on in his years. Justice Breyer is the oldest sitting member of the Court. At 82 years old, Breyer has technically passed the average life-expectancy of an adult male in the United States. Older people already face significant discrimination in society, and the force of that stigma should be considered in calling for Breyer’s resignation. Ageism is especially prevalent in the workforce. Calling for Breyer to retire due to his age arguably perpetuates the notion that older people have little left to contribute.

It is likely, however, that the calls to retire are also born out of the idea that Justice Breyer has served his time. In fact, he has served for nearly a decade more than the average tenure of a Supreme Court justice. Supporters of his retirement might also point out that the majority of appointed Supreme Court justices in history have opted to retire. Though appointments are technically for a lifetime, 57 out of the 108 Justices left office voluntarily. With these facts in mind, calls for Breyer’s retirement arguably reflect Supreme Court norms.

Defenders of Justice Breyer, however, point to the inconsistency of his critics. It’s hard to ignore the blatant difference in treatment which Breyer is receiving compared to his predecessors or even current fellow justices. Justice Ginsberg passed in the last few months of the Trump administration, leading to the appointment of Justice Coney Barret, who was highly unpopular with Democrats and especially pro-choice advocates. Justice Ginsberg had a history of health complications, yet was applauded for continuing to serve on the bench. In comparison, Justice Breyer has far fewer physical health complications, but has been subject to a plethora of scrutiny for continuing to serve. Perhaps this clear difference in treatment is a result of Ginsburg’s celebrity-like popularity in American culture, or even her perceived status as a liberal icon. It is also possible that the increased scrutiny directed at Breyer is a direct result of Ginsburg’s death and its aftermath. Democrats are fully aware of Republicans’ ideal Supreme Court candidates, Trump’s appointments shifted the balance of the Court decisively. Perhaps, then, calls for Breyer to retire are a direct response to this political reality, making for an unfair comparison between the treatment of Justice Breyer and Justice Ginsberg.

This suggests that many of the calls for Breyer to retire are motivated not by discrimination regarding his ability to do his job adequately, but rather out of concern that his seat might need to be filled at a politically inconvenient time. If not for fear of a potential future Republican-appointed justice, there likely would not be any scrutiny aimed at Justice Breyer. As such, calls for Justice Breyer’s retirement are premised on the assumption that the Supreme Court is a political institution (for discussion, see Tucker Sechrest’s “Politicians in Robes”).

The politicization of the Supreme Court has been a topic in legal scholarship for decades. Critics of this phenomenon argue that using the Court as a political scoresheet undermines the public’s faith in the legal institution of the country to be fair and even-handed. One might also argue that the very structure of our government, which prioritizes the balance of powers, indicates that the Supreme Court was meant to be an institution far removed from politicking. Indeed, the Court has historically handed down politically disfavored decisions which had enormous effects on American society, for better or worse.

Despite the fervent calls for his retirement, Justice Breyer has made it clear that he will not step down. Unlike his critics, Breyer believes that political compromise is still possible and should be pursued by the very Democrats who criticize him. Whether this is virtue or folly, his critics would do well to consider what ultimately motivates their impatience and where it might lead.

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“Politicians in Robes”: Neutrality in the Supreme Court

photograph of judge in robes

As the Supreme Court decides which issues to take up on its docket — abortion, gun rights, and perhaps even affirmative action — legal seers are already tallying the expected results. Emphasizing the court’s 6-3 conservative majority, many see these cases as having all but been decided; the writing is on the wall.

The political leanings of the Roberts Court have only grown more visible. While an air of secrecy often attends the justices’ business and keeps the inner workings of the Court hidden from public view, any sense that the Court stands removed from the political fray is quickly disappearing. Justices Kagan and Sotomayor have increasingly called out Kavanaugh’s inconsistent rulings, and he’s been taken to task for his hollow virtue-signalling and performative hand-wringing. This isn’t like when Justice Alito sparred with Gorsuch over his textualist read of Bostock. In Kagan’s dissent in Edwards v. Vannoy just last week, she explicitly chastised Kavanaugh for his approach that “treats judging like scorekeeping … about how much our decisions, or the aggregate of them, benefit a particular kind of party.” This, Kagan argues, is simply not how judges are supposed to approach their duties. Judging requires focusing on the legal merits of the case before you; it isn’t about anticipating political fallout according to party affiliation or balancing “wins” and “losses.”

The divisiveness seen in the Court mirrors the ugly politics in Congress that preceded its recent newcomers. All three justices, Ian Millhiser points out, were “nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country.” Given the hypocrisy surrounding Gorsuch and Barrett’s appointments as well as the acrimony on both sides over Kavanaugh’s confirmation, it will be hard to dispel the notion that the Supreme Court is just another battleground for political score-settling.

Add to this a common belief in the practice of strategic retirement – justices timing their departure to ensure the installation of like-minded predecessors – and it’s hard to see the Court as anything other than an ideological land grab. The lottery appointment system, ensuring that justices are confirmed unevenly, erodes public trust and stretches the connection between the people’s will and their rulers’ authority to its breaking point.

Taken together, these considerations question the Court’s ability to serve its necessary function as a check on power and legal backstop. Contrary to Justice Roberts’s claim that the Court’s job is merely to “call balls and strikes,” the prevailing perception is that justices are overwhelmingly motivated by their personal political agendas and, thus, the Roberts Court stands committed to effecting the Right’s political will.

So what do we stand to gain by maintaining the fiction that justices are nothing more than umpires? Why deny the Court is composed of “Obama judges or Trump judges, Bush judges or Clinton judges”?

However well these cynical accounts reflect the reality, it does great and lasting damage to our legal system to reduce the High Court to just “another political institution” — a nine-member Congress replete with the familiar political hackery and partisan warfare. That damage can’t be undone by simply expanding the bench to instill balance and force it to better reflect citizens’ diverse viewpoints. Any politics-driven reform to the Court threatens to undermine whatever is left of the public’s trust in the institution. The Court’s role as guardian of individual rights, ultimate interpreter of the Constitution, and final arbiter of the law is very much at stake. Ultimately, the Court’s decisions confer legitimacy only insofar as we believe in its singular ability to apply the law in neutral fashion, according to a standard we (perhaps naively) think insulated from political ideology.

These convictions have led Justice Breyer to claim that the “peril facing the Supreme Court comes less from partisan judges than from citizens who, encouraged by politicians, equate impartial justice with agreeable judicial outcomes.” Rather than focusing on results, we should expect judges first and foremost to follow the law. Public trust comes from our faith that, in interpreting the law, justices rely on their legal ability and interpretative powers rather than fidelity to a particular political party. We call on the Court to deliver legal pronouncements rooted in a theory of constitutional interpretation rather than barefaced political morality. The Court stands apart from other political institutions because we see its members as possessing a specific kind of expertise and assessing cases according to a unique and independent metric. Judging is about applying neutral legal criteria, not about partisan policy preferences; it’s about divining the meaning of words, the intentions of authors, and the implications of past precedents. It’s an investigation rather than a contest, a deliberation rather than a quarrel, an art rather than a science.

Apart from this prioritizing of procedure over product, we also tend to think that the justice’s lifetime tenure insulates them from political pressure. On the one hand, this makes the justices unaccountable to the people; these unelected officials exercise enormous power over the lives of citizens without fear of recall. On the other hand, this suggests that judges are freed from the rancor of party politics and are beholden to no one (including the person who appointed them).

But what do we do with the incongruity between this idealized fantasy and our political reality? How do we restore (or at least maintain) public trust in the institution? Expanding the bench threatens to burn whatever credibility the Court has left, but staying the course promises death by a thousand cuts. From regular appointments to term limits, perhaps President Biden’s Supreme Court reform commission can show us the path forward, though no one seems to be holding their breath.

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Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?
Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.
Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.
Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.
The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.
Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.
It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.
The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.
Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

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Revisiting the Trail of Tears: Tribal Control and Environmental Justice

image of old Oklahoma map designating "Indian Territory"

In early October 2020, the Trump administration’s Environmental Protection Agency sent a letter to Oklahoma governor Kevin Stitt. The letter granted Stitt environmental regulatory control over all of the tribal lands in the state. Among other things, this gives Stitt the power to determine whether hazardous waste can be dumped on tribal lands, the ability to make decisions regarding whether and where fracking can take place, and the ability to determine if and where large-scale industrial animal agriculture, with all its attendant pollution, can operate in tribal jurisdictions.

This development is yet another chapter of a disturbing story. In the early to mid-19th century, tribes of indigenous people occupied ancestral lands in states such as Alabama, Florida, Georgia, North Carolina, and Tennessee. These tribes were the Choctaw, Chickasaw, Seminole, Creek, and Cherokee. It didn’t take long for some American whites to realize that the land populated by these tribes was valuable. Many members of the white population had aspirations to attain the land in order to grow cotton on it — cotton that would be picked by African slaves. In 1830, President Andrew Jackson signed the Indian Removal Act, a piece of legislation that allowed congress to “trade” Southern lands with much promise as fertile soil for the growth of cotton for “Indian colonization” lands across the Mississippi River. What these trades meant in practice was that native populations were relocated from their ancestral lands to places to which they had no connections. In many cases they were removed from their lands forcibly. They were not provided with supplies or support on their journey to their new home. The path was long and treacherous, and many native travelers did not survive. The procession came to be known as the “Trail of Tears.”

Some of the members of the five tribes that survived this journey settled in reservation lands in eastern Oklahoma, which at the time was not a state. The tribal land comprised a significant portion of what is now the state. In many respects, in recent years the government of Oklahoma has increasingly treated native persons as if they have no rights over their own lands. Many people in power in the region are of the opinion that the reservation status of the eastern part of the state was disestablished in 1907 when Oklahoma was admitted into the union. The state has argued that the disestablishment occurred during the “allotment” process, when the land was divided up and treated as individually owned by members of the respective tribes.

The question of whether Five Tribes reservations had been disestablished was resolved by the United States Supreme Court in July 2020. Two cases generated the controversy. In one case, Patrick Murphy, a member of the Creek Nation, was accused of committing a murder. He was convicted and sentenced by the state of Oklahoma. If native persons live on federal reservations, they are subject only to tribal and federal law. Murphy contended that he was tried in the wrong jurisdiction — he should have been tried not by the state but by the federal government. The second case was a case in which Jimcy McGirt was tried and convicted by the State of Oklahoma. He was given two sentences of 500 years for raping a four-year-old girl. On appeal, counsel for McGirt argued that, because the crime took place on the soil of the reservation, McGirt, too, was sentenced in the wrong jurisdiction. Representatives of the State of Oklahoma contended that the lands occupied by the Five Tribes are no longer established reservations. The Supreme Court disagreed, finding no evidence that reservation status had at any time been revoked. Writing for the majority, Justice Gorsuch said,

“The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

News agencies reported this opinion as a “landmark decision” by the Supreme Court. The opinion acknowledged the historic and continued injustice endured by members of these tribes and it demanded that the government keep its promises. In the wake of the decision, many speculated that tribal members would have more of a voice in decisions about the environment as it relates to their lands. In particular, they would have some say in the construction of pipelines and other potentially environmentally devastating projects. They might also have some regulatory authority over oil and gas. The actions of the Trump administration’s Environmental Protection Agency demonstrate that they have no intention of respecting tribal input or the decision of the Supreme Court.

Those sympathetic to the EPA’s position argue that land is a finite resource. It’s unfortunate that we may sometimes have to break centuries-old promises, but the consequences justify doing so. State officials have obligations to their local economies. They can’t bring about economic growth and prosperity if nearly half of the state is off limits to any kind of expansive action. What’s more, Oklahoma is oil-rich; it produces 5% of the nation’s crude oil. This is a critical energy source, and these, too, are finite. As harsh as it may sound, some argue that access to important resources shouldn’t be denied because our great, great, great grandparents made promises. At the time at which they made those promises they weren’t fully informed about what they were bartering away. In response, one might argue that no one was “bartering” over anything. Native lands were stolen, and people were killed and displaced. Reservations aren’t a gift nor did they come about as a result of a free and fair trade.

Critics of the EPA’s actions argue further that economic growth need not be a society’s perpetual goal. Perhaps it’s time to finally focus on sustainability instead. The resources that Oklahoma seeks to exploit on tribal lands are resources that should be replaced with green alternatives anyway. Some writers have argued that the fact that our country is always barreling toward economic growth at least partially explains why indigenous knowledge regarding environmental practices is so often overlooked. For example, in Indigenous Knowledge and Technology, Creating Justice in the Twenty-First Century, Linda Robyn argues,

“The legacy of fifteenth-century European colonial domination placed Indigenous knowledge in the categories of primitive, simple, ‘not knowledge,’ or folklore. It comes as no surprise then that through the process of colonization Indigenous knowledge and perspectives have been ignored and denigrated by the vast majority of social, physical, biological and agricultural scientists, and governments using colonial powers to exploit Indigenous resources.”

Members of native tribes have critical insight to share regarding environmental issues. Not only do they know their lands well, they also have rich history, cultural customs, and practical wisdom regarding sustainable environmental practices. Colonizers and other opportunists have never cared much about this wisdom because sustainability was never the goal.

Nearly three hundred years after the Trail of Tears, little has changed when it comes to how some Americans view tribal lands. Growing cotton isn’t as profitable without all the free forced labor, but profiteers still lick their lips and look to tribal lands for other business ventures.

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Confirming Amy Coney Barrett: Against Secularism or For Religious Freedom?

photograph of Trump and Judge Barrett at nomination ceremony

On September 26, President Trump announced he would be nominating Amy Coney Barrett to fill the Supreme Court seat recently vacated by the departed Justice Ruth Bade Ginsburg. This decision is not only controversial considering the fact that recent political precedent would imply that the winner of the upcoming election should choose the next Justice, but also because of the perception that Barrett is not only under qualified to sit on the Court, but also potentially unfit considering her strong religious views. Barrett is a stout Catholic, member of the spiritual group People of Praise,  and has been vocal about the influence of faith on judicial ethos. Various politicians, activists, and even those with personal ties to Barrett have expressed staunch opposition to her nomination, most strongly on the basis of her perceived bias. However, in response to this criticism, many have come to her defense, arguing that not confirming Barrett on the basis of her religion is in fact religious discrimination.

Are these critics right to assert Barrett’s religious views are a conflict of interest? Are her defenders right to argue religious discrimination? And which is the correct interpretation of the First Amendment: secularism or religious freedom?

Secularism is informed by secular ethics, which derives morality from the human experience and rationale, rather than perceived higher powers or specific religious text or tradition. Secular states are countries guided by secular values in the political and governance process, neither favoring nor discriminating against any specific religion. The majority of countries in the world are considered secular states, including the United States.

The majority of the arguments over Barrett concern different interpretations of the principle of secularism. The principle of secularism aims to separate the state from any religious guidance or influence. In the United States, this concept is often boiled down to the “religious freedom” communicated in the First Amendment of the United States Constitution. Republicans, and others defending Barrett argue that to use her faith, or its influence on her, as a ground for not approving her is in itself religious discrimination. Critics, though not Senate Democrats specifically, are wary of Barrett because of their concern that her entire judicial philosophy is anti-secular if it is influenced by her faith.

This is not the first time that Barrett’s religious views have been brought up in the context of her judicial discretion. In 2017, Barrett was nominated for a federal judicial appointment by President Trump. During her confirmation hearing, Democratic Senator Barbara Feinstein expressed the concern that “The dogma lives loudly” within Barrett. Feinstein’s comment was simultaneously blasted as an expression of religious discrimination and rebranded by Catholics across the internet proudly. After Barrett’s nomination, this interaction has been visited again by Democrats and Republicans alike, by the former to reassert concern for her religious bias and by the latter to imply that much of the criticism of Barrett results from religious intolerance. Both of these concerns can be backed up by evidence. On the one hand, the current Supreme Court hosts 5 Catholics, by far more than any other religion. Despite this newfound domination of the bench, historically only 13 Catholics have ever sat on the Supreme Court, despite making up roughly 20% of the United States population. Some, such as law professor Cathleen Kaveny argue that the recent appointment of so many Catholics to the Supreme Court is a “victory over historic prejudice.” While Catholics do not face much modern day social persecution in the United States, that has not always been the case. Between the late 19th century and early 20th century, Catholicism in America was associated mainly with immigrants from Northern and Eastern Europe. These groups were discriminated against not only due to their immigrant and ethnic status, but also on the basis that Catholicism was morally perverse. Historically, Catholics were one of the groups targeted by the Ku Klux Klan, though this is not necessarily the case in modern times.

On the other hand, a Supreme Court made up of staunchly religious Justices, or too many from a certain religious faith, arguably stands in direct opposition to the principle of secularism. This guiding principle, most commonly associated with the separation of church and state, has been highly regarded since the formation of the United States. While the separation of church and state is often brought up in reference to legislative attempts to favor or discriminate on the basis of religion, the Supreme Court’s role in consistent affirmation of secularism is paramount to its existence. The Court regularly makes judicial decisions which involve the First Amendment, for example, recently in American Legion et al. v. American Humanist Assn. et al. Having a court made up with even a few deeply religious justices could impact the judicial philosophy of the most powerful court in this country. This alone a cause for concern considering the fact that certain religious traditions take hard, and sometimes unpopular stances on highly debatable moral issues. This is especially true of the religious group that Barrett identifies with, the People of Praise, which has been criticized for its reinforcement of gender roles and female subordination.

Outside of her possible beliefs, Barrett has been vocal about how her faith guides her stance on abortion, despite the fact that the majority of Americans support a woman’s right to choose. While the popularity of a certain legal stance does not necessarily speak to its morality, there is certainly an ethical value in having a judicial system which is fairly representative of the moral inclinations of the majority of the population. While the Supreme Court is not meant to be a political or moral institution, there are certainly righteous ethical concerns about our Justices sitting on the extreme end of the moral spectrum and serving to guide the legal interpretation and judicial discretion in every courtroom in America.

Barrett’s faith is not the only aspect about her which could guide one’s moral stance on her fitness to serve on the Supreme Court. Her age, gender, and even personal life might also be taken into account when deciding how one feels about her nomination. However, as long as discussions about her faith dominate political and media debate, our moral inclinations about her religious views will likely guide whether or not we believe she should be confirmed.

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Ponderous Chains; or, How the Supreme Court Escapes Precedent

photograph of statue on the steps to the US Supreme Court

Like Jacob Marley, the Supreme Court of the United States wears the chains it formed in life; unlike Jacob Marley, the Supreme Court is not always resigned to be strictly bound by these chains. This is a simile. It is also in the form of a fact-to-fact comparison law students are taught to write in their first year. Such legal similes are a devious device by which the Court slips its ponderous chains — but only in its subtler moments. A court will avoid following a rule while leaving it in place by arguing that it doesn’t apply in a particular case — by “distinguishing” a past binding case from one under consideration. At other times the Court casts-off one of its coils altogether like Dorothy Parker’s apocryphal book. It is this less subtle maneuver that commentators worry about when the make-up of the court radically changes, as it has over the last four years. Now with President Donald Trump poised to name a third justice to the Court, after Neil Gorsuch (replacing Antonin Scalia) and Brett Kavaunagh (replacing Anthony Kennedy), the Court is changing more at one time than it has since the presidency of Franklin D. Roosevelt.

The Supreme Court of the United States (“SCOTUS”) has nine justices. That number is not fixed anywhere as a matter of law, but is how many seats there have been since 1869. That makes 5 to 4 four the ratio for majority opinion. Why does that matter? All courts in the US operate on the basis of a principle called stare decisis, which is Latin for “stand by what is decided.” This principle creates a system of judicial precedents that oblige “lower” courts to rule in a manner consistent with “higher” courts, and creates a strong presumption that a given court will decide in a manner with its own past decisions. For example, decisions of the Supreme Court of Pennsylvania bind the intermediate appeal courts of that state, as well as all of the state trial courts. The decisions of the 3rd Circuit Court of Appeals bind the Federal District Courts of Pennsylvania, New Jersey, Delaware, and the Virgin Islands. And of course the decisions of the SCOTUS bind all other courts: it is the “highest court in the land,” and therefore all other courts are lower with respect to it.

A majority opinion is required for a decision to be binding. Or, more precisely, a single rationale (implicitly) approved by at least five justices is required to bind lower courts. This rule, the “Marks Rule,” was promulgated in Marks v. United States, where the court was primarily concerned with deciding due process issues about the retroactive effect of binding decisions made while other cases are in the process of adjudication. If there is no common rule or rationale embodied by the collective opinions of the justices, then their opinions are merely persuasive rather than binding. When the SCOTUS does issue a majority opinion, in addition to binding lower courts, it also creates a precedent that it will generally hold itself to. Reading a SCOTUS opinion, you will see the justices often refer to past Court decisions as reasons for their decision — sometimes with open distaste. For example, in Grable & Sons Metal Products v. Darue Engineering & Manufacturing, Justice Clarence Thomas invited an opportunity to overrule Court precedent concerning federal court jurisdiction in his opinion concurring with an unanimous court. That is, in the same breath he indicated both “this is the rule” and “I would like to obliterate this rule.” Recently, Thomas also indicated that he would entertain cases aimed at overturning the qualified immunity rule.

Why would a Justice or the Court invite the opportunity to hear cases in order to overturn precedent rather than simply doing it? No court can just issue any decision on any matter it wants to apropos of nothing. There are complicated matters concerning which court (“venue“) can hear which claims (“subject matter jurisdiction“) over which people (“personal jurisdiction“), all of which haunt the sleep of law students. Further, courts usually cannot decide any matters that are not explicitly raised by parties to a legal proceeding: they cannot issue rulings on their own initiative, or “sua sponte.” Finally, the supreme courts of the various states and the United States itself are not generally obliged to hear any particular case. Instead these courts exercise their discretion, guided by their own procedural rules, when determining what cases to hear.

Now the anxiety of liberal Court-watchers becomes clear. With Amy Coney Barrett’s confirmation to the seat made empty by Justice Ruth Bader Ginsberg’s death, the balance of the Court would shift to a clear conservative majority. The conservative bench would comprise Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas, and Chief Justice Roberts, while the liberal bench would have only Justices Sotamayor, Kagan, and Breyer. In light of this composition, people eager to overturn decisions in disfavor with conservatives (for example, Roe v. Wade) would attempt to obtain review for as many cases that could present an opportunity for the Court to overturn past precedent. Conservative members of the Court might even encourage that in their opinions on related matters. There would then be a new precedent, binding on all lower courts, until a time when a later Court with a different composition might decide to change its mind again. However, as Justices serve until they die, retire, or are removed pursuant to impeachment, it takes a long time for the composition of the court to evolve “naturally.”

In light of the Republicans blocking Obama nominee Merrick Garland during an presidential election year, and their subsequent rush to appoint Amy Barrett in the last few weeks prior to a presidential election, many urge an “artificial” alteration of the Court’s composition. The alternative, increasing the number of seats on the court (i.e., “court packing“), was openly discussed by Democratic presidential candidates Pete Buttgieg, Amy Klobuchar, Cory Booker, and current Democratic Vice-Presidential candidate Kamala Harris. However, that option requires Congressional cooperation and popular support and is likely to create pushback. In all likelihood, Democrats will have to wait a long time to appoint a new Justice to the court, even if Joe Biden wins the 2020 election for President of the United States.