Bush and the Supreme Court

[billroper]

In response to yesterday's post, folkmew asked what I thought about the justices that Bush might nominate to the Supreme Court. I answered there, but figured I'd copy it up to the front.

Bush has promised to nominate judges who are "strict constructionists". I believe that he should be held to that promise.

Now, what does that phrase mean? To my mind, this means a judge will read the text of the Constitution and the text of the law and attempt to reconcile them. He will not arbitrarily discard bits and pieces of either that don't fit his personal belief structure. He will consult the legislative record and the record of the original Constitutional convention if he has doubts about what a particular section is meant to do.

Sidebar: much of what we refer to as "the politics of personal destruction" can be traced back to the defeated Supreme Court nomination of Robert Bork. This is a sad thing, because Bork's own statements make it trivial to defeat him on his merits. One of the things that he said was that the Ninth Amendment was like an inkblot and that judges were not permitted to make up what was under it.

But here's the text of the amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I can't think of an amendment that's inherently more important. The Bill of Rights did not limit our rights; it merely spells some of them out because they had been particularly abused recently.

And Bork should have been defeated because of this.

The other important point in judicial nominations is the concept of stare decisis, that appropriate respect should be paid to existing case law and that it should not be overturned without compelling reason.

I believe that these are the important questions that the Judiciary Committee and the Senate should ask of Bush's Supreme Court nominees. If they are held to these standards, I believe that we will have little to fear.

Comments

[scs-11.livejournal.com]

And we should do our best to let our senators know that's how we feel. The Constitution is one damned fine document. Neither side should be applying any'litmus tests' to an appointees qualifications except that the law and the Constitution must be interpreted as they are - not as any group wishes it to be.

[tigertoy.livejournal.com]

The problem with instisting on sticking to the Constitution as it was actually written is that was written too long ago to have anticipated many issues that are vital today. Even on issues that the Constitution speaks to, it speaks with a 200 year old sensibility that, if interpreted strictly, would not make much sense. An interesting anecdotal example: I heard in a conversation at OVFF that during the debate on whichever amendment it is that authorizes the income tax, it was suggested that language be included that would cap any income tax at 12%. That language was rejected, supposedly, because the people at the time thought that specifically mentioning such a high limit would make it more likely that the tax would someday actually get that big.

To put it another way, one person's activist judge is to another person finally defending rights that are in fact in the Constitution, and one person's strict constructionalist is to another person picking and choosing which parts of the original construction to support strictly and thereby is pushing a specific political agenda.

I think that judges should do the best they can to follow what the Constitution actually says, but we would have a revolution on our hands if they tried to interpret the words the way they were meant when they were written. They have to work with what the actual wording means in the context of the society of the day. They also have a duty to try to actually deliver justice in cases where the Constitution read strictly provides no guidance at all. To a strict constructionalist, Roe v. Wade is a crock and the Court vastly overstepped its authority in Brown v. Board of Education. Can we afford a Supreme Court that thinks that way?

The major issues that drive appointments to the Supreme Court are the religious issues. Regardless of what you mean by a strict constructionalist, when Bush says it it's a codeword for someone who will overturn Roe v. Wade and permit school prayer, someone who would never support a decision like Brown v. Board of Education and to whom displaying the Ten Commandments in court is appropriate.

[billroper]

My understanding is that even some liberal scholars have substantial problems with the reasoning in Roe v. Wade. However, the doctrine of stare decisis says that it would require a compelling reason to overturn that decision.

But, hey, here's the text of the decision. Read it and form your own opinion on the subject.

(Actually reading the decision, I see that Blackmun was trying to undertake a Solomonic task. One criticism that I've heard of this decision -- and which I tend to agree with based on a cursory reading -- is that he laid out too many specific criteria, leaving not enough to the judgment of the legislature. There's also a difference between something that would permanently damage the health of the mother and something that would be a temporary inconvenience which I don't see addressed in the decision.)

And here's Brown v. Board of Education. If you read the opinion, you'll see that the Supreme Court relied on a number of intermediate decisions that had been made in the time since Plessy v. Ferguson to support its argument in favor of overturning that decision and arriving at the compelling reason for the ruling: that it was impossible to create a school system that was actually "separate but equal".

But thanks for making me go look these up. I learn new things every day. :)

[madfilkentist]

Well said, Bill.

I would rather have a court that supports the Constitution strictly and occasionally reaches conclusions I don't like than one that thinks that the Constitution is some irrelevant nonsense that applied only in the 18th century. There are occasional items which applied to specific circumstances that have changed -- for instance, there's a provision guaranteeing a jury trial in suits over $20, which was a huge amount of money back then -- but that's what the amendment process is for.

Freedom of speech is still freedom of speech, even though Jefferson and Hamilton couldn't have imagined the Internet. Growing vegetables in your back yard still isn't "interstate commerce," even though it became convenient to the federal government to claim it is so that it could fall under regulation.