Geoffrey Stone, a law professor at the University of Chicago, explains very crisply in the New York Times today why liberals need to break away from the terms of debate set by the right wing on the purpose of the federal judiciary. (Hint: it’s not to call fair balls and strikes like an umpire!)
So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms. [Excuse me--does anyone read Federalist No. 10 any more? That whole part about controlling the effects of faction? No? I didn't think so.]
Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.
He even defends President Obama’s call for empathy last year in candidates for appointment to the U.S. Supreme Court!
I always thought that Chief Justice John Roberts’s vision for his role on the court as that of an umpire at a baseball game was astonishingly stupid and disingenuous, as is the whole pretend philosophy of “originalism.” (Although I realize the utility of stupid metaphors and similes when trying to survive Senate Judiciary Committee hearings. Who here really thought that Roberts and his cronies were impartial observers who would just “call ‘em as they see ‘em?” Raise your hands, please!) Look at the last honest person to face the Judiciary Committee as a nominee to the Supreme Court: Associate Justice Robert Bork!
Originalism is to legal scholarship as Gradgrindianism is to history (“Facts! Just the facts!”): a pretty transparent ploy to use power to serve power and justify the status quo. (I suppose that’s one hell of a way to control the effects of factionalism!) It’s easier–and certainly more rewarding!–to play umpire. Umpires just have to call balls, strikes, fouls, and outs. They don’t have to worry about why one team gets 15 outs before the inning is over, and the other team gets only 1 out. They don’t have to wonder why there are 200 outfielders on one team, and only 3 on the other team. They don’t have to inquire why one team has only designated hitters, whereas the other team plays by National League rules. They don’t have to worry about why one team goes to Florida or Arizona for spring training, and the other team trains in North Dakota. They just pretend the game is fair to begin with so that they can just “call ‘em as they see ‘em.”
One final note: The retirement of Associate Justice John Paul Stevens is momentous for several reasons. But, I will miss him as a voice of experience and history. He’s the last remaining Supreme Court justice to remember the Great Depression, and our last World War II vet. (In fact, he’s the last of any kind of vet on the court now that we’re down to the Vietnam draft-dodging generation of leadership!) Everyone has been so concerned about his confession, as the last remaining Protestant on the bench, but I think that’s small beer compared to these other biographical facts. I think we should pause and reflect what his retirement will mean for the institutional memory and yes, the “empathy” of today’s Supreme Court.