Nominee Judge Amy Coney Barrett as she is introduced by President Trump.
Jeremy Paul

Here we go again.  Today the U.S. Senate Judiciary Committee will begin hearings to consider President Trump’s nomination of Amy Coney Barrett to serve as an Associate Justice on the U.S. Supreme Court.  Tempers will be even hotter than usual because of the cynical way Republicans blocked a hearing for President Obama’s nomination of Merrick Garland a full 10 months before the 2016 election and yet are now rushing to confirm Judge Barrett even after voting has already begun this year.

But amidst the partisan rancor over the Affordable Care Act and the intensely controversial Roe v. Wade, the viewing public will have to listen carefully to uncover the essence of what is a profound yet misunderstood debate about what the country should be seeking in an ideal Supreme Court justice.

Consider first the reductionist view parroted ceaselessly on the campaign trail.  Judiciary Committee Chair Lindsay Graham, for example, told his recent debate audience, in a formulation we can now all recite by heart, that his committee is eager to confirm judges who will follow the Constitution and not legislate from the bench.  This resonates with certain audiences in part because so many observers believe the Court overreached in finding constitutional protection for abortion and same-sex marriage.

Critics of these court decisions cry foul because nowhere does the constitution mention the word “privacy,” let alone these more contemporary freedoms.  Yet whatever one might say about the justices who joined the landmark privacy opinions, not a single one believed he or she was imposing a policy preference.  Indeed, every serious participant in our constitutional system embraces the idea that judges are to interpret the constitution and not seek to replace decisions of elected legislatures with the judges’ own policy preferences.  The question is what kind of interpretation best fits our constitutional system and most closely aligns with the nation’s values.

The late Justice Antonin Scalia helped popularize what seems the most straightforward answer to the question of how we can be sure judges act faithfully toward the constitution.  It’s the approach Judge Barrett has long advanced. Since the basic idea of a written constitution is that we are bound today by what was decided in the past, and since the best evidence of those past decisions is what the constitution actually says, Scalia described the judge’s task as discerning the text’s meaning.

A sophisticated thinker, Scalia understood that texts are not always clear, but he argued that sufficient guidance could be ascertained from examining how the words in the constitution would have been understood by people at the time they were written. Happily for Justice Scalia, this approach to interpretation often aligned with his own policy preferences.  Since it’s highly unlikely that constitutional drafters would have thought at all about abortion or same-sex marriage, Scalia expressed profound dismay that modern courts have offered them constitutional protection.

Above all, a great Supreme Court justice is one who understands that the genius of the Constitution is not only in the answers it provides (no one under 35 can be President) but in the questions it makes central to our political life.

But what’s most important from our perspective viewing this month’s confirmation process, is that Scalia offers a theory of constraint that allows a simple explanation of what makes a great justice.  It’s a powerful form of “gotcha.”   Either a judge sticks closely to the original meaning of the text, or she becomes an imperial legislator dictating to the nation behind black robes.  Which side would you want to be on?

Sadly, the simplicity of Scalia’s approach, combined with its pairing of the abortion and same-sex marriage issue (which have become synonymous with the court in the public mind), has crowded out, at least in popular publications, efforts to articulate equally powerful notions of judicial fidelity to the constitution as law.

Opponents of Justice Scalia’s views have developed absolutely crushing refutations showing why looking only at the text cannot produce the sort of determinate answers to constitutional questions that would remove the role of human judgment.  There is far less constraint built into the idea of following the text than meets the eye.  But what we should demand from senators wary of Judge Barrett’s embrace of Scalia’s views is that they explain how alternative views of a great Supreme Court justice offer a vision of constraint that prevents what Senator Graham decries, legislating from the bench.

The problems with seeking to constrain judges from imposing policy preferences by pinning them to constitutional text are legion.  Most obvious is the challenge of attempting to discern the meaning of a document drafted by a group. Since we all know that different people may have voted for the Constitution with different ideas about what its words meant, Scalia dodges the problem by shifting the lens away from the intent of those who drafted and ratified the document.

But his idea that we can find clarity in the public understanding of the words at the time, hardly solves anything.   How do we know whether the clause about a “well-regulated militia” that ushers in the Second Amendment’s protection of the right to “bear arms” is meant to clue us in to the spirit of the Amendment or to actually qualify the extent of the protected right?

Indeed, the idea that plunging into constitutional history will produce somehow less discretion for judges is belied by experience.  Judges eager to escape constitutional constraint can find what they want in the historical records as readily as they can elsewhere. Consider the Supreme Court decisions in District of Columbia v. Heller (striking down a local gun control ordinance)and U.S.Term Limits v. Thornton (invalidating Arkansas’s effort to impose term limits on congressional representatives),  two cases with lengthy opinions exploring constitutional history that just happen to produce 5-4 outcomes where the history lessons conform to the justices likely underlying preferences.

Equally daunting for those who believe the “original understanding” settles crucial constitutional questions are the many broad terms in the document that seem to cry out for interpretation going well beyond what anyone had in mind when the document was written.  What exactly could we ever say constitutes the original understanding of “cruel and unusual punishment” or “unreasonable searches” or “due process” or “equal protection?”  It seems the framers intentionally chose terms begging for subsequent interpretation so much so that seeking the form of tight constraint “originalists” favor contradicts the very understanding of the document from which courts gain legitimacy.

Even the staunchest originalist recognizes that constitutional provisions require application to modern conditions.

Another way to grasp why adapting to the times is necessary to be faithful to any written law, including the constitution, is to consider the role of dramatic change.  Imagine a wealthy parent who creates a trust document to provide for his children and instructs the trustee to divide the income and then later the principal as even handedly as possible among the four siblings, making sure no one is shortchanged.  The parent then sadly dies in a car accident in which one of her children is badly injured becoming both blind and wheelchair bound.  People might disagree over whether the trustee would be justified in distributing more than 25% of the principal to the injured child, but it would be hard to dispute that the deceased parent’s wishes might have been expressed differently had she known of the injured child’s plight.  So too should we assume that the principles animating the constitutional drafters might find different formulations in modern conditions.

Finally, even the staunchest originalist recognizes that constitutional provisions require application to modern conditions.  Even Judge Lagoa of the Eleventh Circuit, whom President Trump also considered for Justice Ginsburg’s seat, acknowledges that although the meaning of constitutional principles is constant “what changes is the application of that meaning to new things.

The First Amendment’s protection for freedom of the press now routinely applies to radio and television.  And yet the original understanding of the word “press” would hardly have included technology that in the late 18th century would have seemed like science fiction.  The point, of course, is that once the justices are charged with determining application of principles to new situations they already have the kind of discretion that the seeming “constraint of the text” is designed to foreclose.

Despite all these problems, however, Justice Scalia’s approach, to which Judge Barrett openly adheres, will continue to hold sway until others effectively provide an answer to the following question.  If we abandon a cramped notion of adherence to text, is there any other way to protect ourselves against rogue judges imposing policy preferences.  Fortunately, there are many.

A great Supreme Court Justice will have a track record of deciding cases or other important matters based on appropriate, and only appropriate, factors.  Think of your image of a fair boss at work.  Do you want one who follows the company’s employee manual to the letter?  Or do you want to work for someone who doesn’t play favorites and would never dream of passing you over for a promotion because you didn’t agree with him about politics or because you like the wrong kind of music?  We all know the difference between someone striving for fairness and one only eager to get his way.

A great Supreme Court Justice will write compelling opinions explaining why her view of the Constitution is consistent with the enduring and developing American story.  We expect justices to write opinions precisely because we know that judges will develop a reputation for fidelity to the law and the constitution when they act consistently and present a vision of our nation that grows from the charter set forth in the constitutional text.  A judge who appears to be deciding cases based on how she would have voted as a legislator will rapidly lose credibility, without which the Court would ultimately lose its power.

Above all, a great Supreme Court justice is one who understands that the genius of the Constitution is not only in the answers it provides (no one under 35 can be President) but in the questions it makes central to our political life.  The framers knew that government officials would often be tempted to suppress dissent, and so they guaranteed a right of free speech.  A great Supreme Court justice will heed this constitutional guidance, never upholding a ban on expression simply because she doesn’t like the message.

Every provision of the Constitution offers direction of this kind, and a great Supreme Court justice will draw strength from all of them, even when, as in the case of the free exercise and establishment clauses of the First Amendment, they seem in tension with each other.

But the entire idea that any departure from rote fidelity to fading historical memory leaves a judge with nothing left to do but impose her policy preferences is an insult to the integrity of every judge who has ever served on any court. It’s not easy to discern the direction that constitutional values point when cases get difficult.  It requires sensitivity to current conditions, a vision of how various parts of the legal system fit together, an understanding of how people from all walks of life will be affected by outcomes, and a humility that sparks genuine listening to argument and appropriate deference to other government actors.

In short, a great Supreme Court justice is a person with great judgment.  Under ideal circumstances that’s what Senate hearings on advice and consent should aim to assess about judicial nominees.

Jeremy Paul, a Professor of Law, Northeastern University School of Law, is the former dean of the University of Connecticut Law School.

Leave a comment