The below was in response to Dahlia Lithwick's latest, "The Surrendered Court: Maybe America doesn't want an immobilized judicial branch after all." It was originally posted to the Slate fray. Let me add that the title doesn't really do it for me, but it does let me dwell on some favorite themes.
The need: to answer Scalia's claim that flawed or not, originalism is best because: "the alternative, says Scalia, is for a justice to 'make the law what he thinks it should be.' " The usual blood libel. The term is touchy, I know, but the claim is just that -- it defames those who he disagrees with as unprincipled. Unlike he and his supporters. It is not "should," you ass, it's "as it is or can be." You might disagree with the analysis, but that doesn't make it unprincipled. People like me aren't dreaming up ideal states; we are working with the law as it is.
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One value of the nomination of Goodwin Liu is that he is an excellent legal mind that promotes a progressive point of view using the tools of the trade in ways understandable to all. This includes in a short book, downloadable for free online, he co-authored -- Keeping Faith With the Constitution. It is easy to read and geared to the general public.
For instance, on balls and strikes:
Although these attempts to simplify constitutional interpretation may have a surface appeal, they do not withstand scrutiny, as we show in this chapter and beyond. Ironically, the significance of Chief Justice Roberts's baseball analogy is actually the opposite of what he intended. Just as baseball players and many fans know that umpires over time have interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game, so too do lawyers, judges, and ordinary citizens know that the faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context.*
Those interested can go to the website and listen to Liu and Pamela Karlan provide short summaries of the basic themes of the book. Liu also wrote an interesting law review article entitled "Education, Equality, and National Citizenship," that defends a national approach mainly focused on the federal Congress. It is notable how he makes his case -- he has an extended discussion of efforts in the late 19th Century to use federal funding to promote education, largely because a good citizen, an equal citizen, needs some basic education. History, as with judicial interpretation can be the progressive's friend.
It is interesting as well that concern is made that "empathy" is code word for support of the disadvantaged. One frayster wondered about empathy for the police, military, school officials and so forth. That's why Madison et. al. thought judicial review was important -- to protect the powers that be. As one person noted:
To the extent that judicial review is a normatively attractive institution, it increases the chances that individuals and groups that are marginalized by other political processes will have their rights protected. In addition, the modern regulatory state often requires judges to interpret regulatory statutes intended to protect the rights of citizens against powerful private interests. The Republican appointments who now dominate the federal courts tend to stand the best aspects of judicial review on their head, interpreting ambiguous constitutional and statutory provisions in favor of interests that are already greatly overrepresented in ordinary political processes.
The Reagan/Bush courts still repeatedly acts against the will of the majority -- Heller, e.g., struck a democratically passed law. The Rehnquist Court struck down more federal laws than any other before. But, don't worry, unlike "the left," they only do this the right times. Judicial review provides a check against the majority, but not always -- often the majority is right. It's not all or nothing. Still, there is in various cases a certain extra concern.
Could it be that the law might even have a "liberal bias"? Originalism is deemed by some as a way to restrain judges. But, that alone isn't a reason to use it. Not that it apparently is working that well in various ways. Judging can be messy. Robots don't judge. People do. There is some discretion. There is some judgment. People like Breyer admit this. Others don't want to admit it. These tend to blame "the left" as "dangerous" while they want to use unworkable and/or arbitrary rules themselves that don't stand up to scrutiny. After all, artificial or not, they "restrain" judges.
Anyway, want a parable? Well, a few Jewish scholars were debating the Torah. God was listening and submitted an opinion. The scholars told him to shut up -- you gave us the law, we now get to interpret it, not you. God laughed -- "my creation best me." The framing generation doesn't decide the questions of the day. They gave us law that we must interpret, sometimes via judges, sometimes (as Jack Goldsmith noted in The Terror Presidency) by other branches, judges only stepping in much later, if at all. History helps, but the final decision is ours, especially since things change and history is often so divided.
Perhaps, some originalists think this is blasphemy? This is the ways of our "republic" all the same, including the value of independent judges who are not too "hogtied."
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* Any fan also knows umpires on the ball field are quite flexible when applying the rules as well. Consistent application of precedent also is important there -- it is often said "well, he was calling that all day." So, again, how appealing was that metaphor, really?
[Or, maybe, it has a hidden truth. Umpiring is clearly more an art than a science. Sometimes, people tell the truth without quite meaning to do so.]