Judging Judges

This post, at best, supplements Charles Krauthammer’s From Thomas, Original Views. (At worst it is just a crappy rewrite.) Click here to read the article. Krauthammer notes three ways judges interpret the Constitution, and three SCOTUS judges who embody each way.

An excerpt:

With Thomas’s originalism at one end of the spectrum and Scalia’s originalism tempered by precedent — rolling originalism, as it were — in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and that the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.

Let’s begin with
Originalism: From Wikipedia:

The key to originalism is that interpretive decisions made by Judges should be based on facts about the document when it was originally written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent or original meaning does not support the end result sought, a ruling supporting that result is not granted. In this manner, originalists contend, alteration of the Constitution remains the prerogative of the amendment process outlined in Article V.

Thomas is a true originalist, which means he is the bogeyman conservative liberals complain of in that he supports anti-sodomy laws in Texas, while at the same time he is a dirty hippy worthy of Cartman’s scorn since he’s for legalizing pakalolo in California.

Rolling Originalism, as Krauthammer puts it, is embodied by Justice Scalia. Rolling originalism complies with the doctrine of stare decisis, which says judges must follow precedent. So, ideally at least, while Scalia may wish to be a pure originalist like Thomas, he is constrained by precedents set by previous courts that were not originalist. (Scalia’s critics believe he complies with stare decisis only when it is convenient for his conservative agenda. I have to agree with them that Scalia is a hypocrite. Still, regardless of why and how he does it, he does employ “rolling originalism.”)

UnOriginalism: There is no antonym for “originalism”, nor “originalist” et cetera so I’m going with the antonym to original and sticking “sm” on the end. Some would say Judicial Activism is the antonym, but that term is way too loaded. (For one thing, judges who ignore stare decisis in favor of originalism can be accused of judicial activism.) Suffice it to say that “UnOriginalism” is embodied by Justice Stephen Breyer, and that it considers the Constitution to be a “living document” whose meanings change as the times change.

The point of this post is not to make a value judgment regarding which of the three methods above is best, rather it is to raise the bar of the conversation. As Krauthammer says at the end of the article:

I hope President Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench but, perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile toward women, opposed to gun-free schools . . . and pro-marijuana?

When Bush’s judicial nominees are tried in the media liberals often cherry-pick rulings to portray them as conservative extremists. But judging judges this way is neither fair nor really useful. Congress is full of lawyers and they know how judges come to their decisions. The vast differences between the way laypeople think about a SCOTUS candidate and the way a lawmaker/lawyer does is unhealthy. I hope words and phrases such as stare decisis, originalist, and jurisprudence constante become part of the national vocabulary by the time President Bush nominates the next Supreme Court Justice candidate.

Editorial: If you’re just interested in this subject here are some excellent reads I found while researching the above:

Click here to read a Slate which sort of describes the Justice Scalia Scalia claims to be, but is not.

There are some good arguments for rolling originalism. If the laws of the land change every ten years nobody can trust the law. Having said that, there are many great arguments AGIN’ it. The best I’ve found is this (bold mine):

Frank is correct that Kelo is consistent with previous takings cases. But, Thomas makes the argument that those cases were poorly reasoned and “wholly divorced from the text, history, and structure of our founding document,” and therefore ought to be reconsidered. Frank apparently thinks stare decisis trumps everything, so those previous rulings cannot be reconsidered, no matter how strong the case against them. I disagree.

Yes, precedent should matter, and we need some stability and predictability. But, no, it’s not more important than restoring the limits on government power that the founders intended and the plain meaning requires. I guess that’s one reason I’m not a conservative — I’ll be damned if I want to “conserve” what should never have been permitted to begin with.

Frank’s “conservatism” regarding precedent forces the proponents of liberty to play only defense in the courts. We can try to prevent losses of liberty and expansions of government power, but once we lose on an issue, it’s lost for good. We can never regain lost liberties or undo government encroachments. No part of the Constitution, once ignored, can ever be restored. I don’t accept that. I’m not content to “stand fast” in a rising tide of statism; I want to move back toward shore.

Click here to read the source of the above excerpt, entitled Don’t Count on Conservatives. It is about the Kelo case, and it is good.

One major problem with Originalism is that we have veered so far away from it that it may be practically impossible to return to it. Click here for some good arguments along that line. Also, it rips Scalia a new one.

This links to a good dialogue regarding stare decisis and originalism.