April
14th 2010
Judicial review, “originalism,” and bad metaphors

Posted under: American history, wankers

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.

NOTE:  If you just can’t get enough on the Supreme Court, see these other posts on Ruth Bader Ginsburg, the strip search case of 2009, and Gonzalez v. Carhart, (2007), from the Historiann archives.

26 Comments »

26 Responses to “Judicial review, “originalism,” and bad metaphors”

  1. Tom on 14 Apr 2010 at 6:17 am #

    If Supreme Court justices proclaim “original intent” as central to the relevant interpretation of the Constitution, I guess eighteenth-century historians should be arguing cases before them, not lawyers.

  2. Historiann on 14 Apr 2010 at 6:22 am #

    Right on, Tom. But, even conservative 18th C historians recognize that there was no such thing as a consensus among the “Founding Fathers” who wrote the U.S. Constitution. Only lawyers and judges continue to pretend as though the “Founding Fathers” weren’t inherently and eternally divided by faction!

    That said, I don’t think anyone really wants historians to take charge of SC oral arguments (perhaps least of all the historians themselves.) Our role is to complexify and provide context and nuance–and there ain’t that many clear balls and strikes in that game.

  3. kw on 14 Apr 2010 at 6:32 am #

    Yes, Tom, because the radical/conservative Supremes have been so respectful of history, never mind historians!

    A very good piece on SCOTUSBLOG on the implications of having Kennedy make the writing assignments (when he joins the liberal bloc) makes clear yet more effects of Stevens’ absence: http://www.scotusblog.com/2010/04/the-kennedy-court-only-more-so/#more-18453

  4. rootlesscosmo on 14 Apr 2010 at 6:42 am #

    A little more on Thomas Gradgrind:

    ‘Give me your definition of a horse.’

    (Sissy Jupe thrown into the greatest alarm by this demand.)

    ‘Girl number twenty unable to define a horse!’ said Mr. Gradgrind, for the general behoof of all the little pitchers. ‘Girl number twenty possessed of no facts, in reference to one of the commonest of animals! Some boy’s definition of a horse. Bitzer, yours.’


    ‘Bitzer,’ said Thomas Gradgrind. ‘Your definition of a horse.’

    ‘Quadruped. Graminivorous. Forty teeth, namely twenty-four grinders, four eye-teeth, and twelve incisive. Sheds coat in the spring; in marshy countries, sheds hoofs, too. Hoofs hard, but requiring to be shod with iron. Age known by marks in mouth.’…

    ‘Now, girl number twenty,’ said Mr. Gradgrind. ‘You know what a horse is.’

  5. Profane on 14 Apr 2010 at 7:10 am #

    I would have had no problem had Robert Bork been confirmed. But then, I would have no problem if Goodwin Liu is confirmed to a seat on the court of Appeals. One of the sad consequences of the Bork hearings is that the judicial confirmation process is now so politicized that it looks like it will never happen.

  6. Historiann on 14 Apr 2010 at 7:52 am #

    Thanks, kw, for the link–I read that a few days ago, and shudder to think that the author is correct.

    Profane, this is Big Tent Democrat’s point at TalkLeft: democracy and justice are ill-served by these show-trial like hearings. (Well, I don’t know if he’d be OK with Bork, but wev.) But the problem is that the horse (as defined by Bitzer and Gradgrind) is already out of the barn now, right?

  7. Comrade PhysioProf on 14 Apr 2010 at 8:25 am #

    A couple years ago, I wrote a detailed analysis of the jurisprudential bankruptcy of conservative “originalism”:

    Conservative legal theorists spend a lot of time talking about how the text of the Constitution should be construed only as it was understood at the time of the Founding and Ratification. Building on this idea, they rail against “judicial activism” and the “creation of new rights” that are not “found in the text” of the Constitution. This provides a theoretical basis for conservative claims that there is no Constitutionally protected right to many things they despise: gay marriage, abortion, health care, housing, food, etc.

    As I will describe below, this textual originalism is bad history and bad law. Furthermore, this theory only has any jurisprudential legs at all because of an unfortunate happenstance of 20th Century Supreme Court jurisprudence.

    You can read the whole thing here:

    http://physioprof.wordpress.com/2009/03/14/repost-constitutional-originalism-natural-law-and-the-ninth-amendment/

  8. Historiann on 14 Apr 2010 at 8:41 am #

    Wow–excellent work, CPP. I’ve long thought that the Ninth Amendment was tragically overlooked, esp. w/r/t abortion law. I think most of the historians here would see merit in your very careful analysis.

    The other rights that the “orginalists” conveniently overlook is the right not to be enslaved, which was never mentioned in the original Constitution or its first ten amendments. In fact, slavery is specifically written into the Constitution in a variety of sneaky, underhanded ways (the 3/5 compromise is the best example of this.)

    Few people think hard about what the world of the so-called “originalists” would look like if they succeeded in returning us to it.

  9. Perpetua on 14 Apr 2010 at 8:53 am #

    “Few people think hard about what the world of the so-called “originalists” would look like if they succeeded in returning us to it.”

    Oh please God don’t make me go back in a time machine and live in the 18th century! But of course that’s not the world of the “orginalists” either because their world has never existed. It would be like a scary S&M Renaissance festival version of the 18th century.

  10. GayProf on 14 Apr 2010 at 9:05 am #

    John Roberts is also the same brainiac who told us that the best way to combat racism is for people to stopping being racist. What a mind, what a mind.

  11. Paul on 14 Apr 2010 at 9:46 am #

    The other rights that the “orginalists” conveniently overlook is the right not to be enslaved, which was never mentioned in the original Constitution or its first ten amendments. In fact, slavery is specifically written into the Constitution in a variety of sneaky, underhanded ways (the 3/5 compromise is the best example of this.)

    I think that the originalists mean the actual text of the entire constitution, not just the parts created before 1800.

    I understand and to an extent sympathize with the idea that the judiciary is supposed to interpret existing laws rather than effectively create new ones, which is generally what is behind the supporters of the “originalist” position. Still, even interpreting existing laws often requires creating additional, more detailed rules that cover details not mentioned in the actual laws, so there is no way to avoid judges creating new rules. It seems inevitable also that how one applies the law in a specific situation will inevitably be affected by one’s political views, so the judiciary will always have a political dimension to it as well.

  12. Historiann on 14 Apr 2010 at 9:59 am #

    Paul–in theory you are correct, but in fact they’re much more tolerant of some post-Bill of Rights amendments and SC rulings (the 13th, Brown v. Board of Education, etc.) than they are of others, (Griswold v. Conn., or Roe v. Wade). They also affirmed the concept of Stare Decisis in the 1992 Casey v. Planned Parenthood case, but I guess that’s out the window now. . . (Stare Decisis is the concept that the courts should follow previous court rulings and precedents. It’s a very Sandra Day O’Connor idea, IMHO, but she’s out the window now, too!)

    I think Perpetua is correct–“their world has never existed. It would be like a scary S&M Renaissance festival version of the 18th century.”

  13. Profane on 14 Apr 2010 at 10:04 am #

    Historiann – yep – this is one of those things upon which I wish we had a reset button. As for Bork and Liu, I do not think that is necessarily a bad thing to have a few judges who are ‘outside of the judicial mainstream.’

  14. Historiann on 14 Apr 2010 at 10:16 am #

    I’d rather have Bork than Thomas, Alito, or Roberts, that’s for damn sure.

    I kind of wonder: are we at the point at which Presidents will start nominating recent Law School grads who have no track record of anything (so no Law Review editorships, either!), because of the demand that we pretend that any experience or evidence of having (written or not) opinions in the past is evidence of “bad faith” jurisprudence, and because of the demand for longevity on the court?

    (I love Ruth Ginsburg, but she was 60 when she was nominated by President Clinton.) What’s the right age for having loads of experience and learning, before decrepitude sets in? (Then again, healthy young people might die in accidents or of disease anyway.)

  15. Indyanna on 14 Apr 2010 at 10:44 am #

    It always struck me that the Honbble John Marshall was the founding judicial activist when he pronounced that it was “profoundly the province and the duty of the judicial department to say what the law is.” That’s what made the Court what it now is, right, and not just a bunch of gradgrindian, horse-saddling circuit riders? It doesn’t say anything about that in the Constitution, does it? Most conservatives don’t seem to have too much trouble with Marshall, or with judicial review, as long as courts are striking down the work products of left-leaning, activist legislators and putative their running-dog bureaucrat regulatory agents. Can’t hardly see how they can have it one way but not the other way.

    Ironically, when baseball umpires wore white shirts and ties, and before they were unionized, many if not most of them were imperious idiosyncrats who emphatically had their own little strike zones, and personalized interpretations of how to apply such arcana as the supposed need to actually tag a runner, to say nothing of the inscrutable infield fly rule. Now they’re all highly codified and regulated outcomes assessors.

  16. fannie on 14 Apr 2010 at 11:02 am #

    “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.”

    That is a great summary of originalism. My favorite book on the myth is Leonard Levy’s Original Intent and the Framer’s Constitution. One of his most salient points, aside from the observation that there was no single unified intent of the framers or ratifiers, was that the Supreme Court has a long history of Justices who:

    “…first choose what the outcome should be and then reason backward to supply a rationalization, replete with the appropriate rules and precedents, of which there are enough on any side of an issue to make any argument seem to respect tradition and professional expertise.”

    It should be required for citizens to know this. Although, what would happen to the credibility and legitimacy of the judiciary if this known secret got out…

  17. Comrade PhysioProf on 14 Apr 2010 at 11:08 am #

    I understand and to an extent sympathize with the idea that the judiciary is supposed to interpret existing laws rather than effectively create new ones, which is generally what is behind the supporters of the “originalist” position.

    This “idea” is nothing but meaningless word salad. The Constitution and Bill of Rights were expressly intended to be interpreted as non-exhaustive of the rights of individuals, which were explicitly considered to be ultimately derived from natural rights. The government was expected to respect and protect all of those natural rights, and doing so has nothing to do with “effectively creating new laws”. The Supreme Court fucked this up grotesquely with their cockamamie “penumbra” and “substantive due process” crapola.

  18. Historiann on 14 Apr 2010 at 11:09 am #

    Indyanna: I hadn’t thought at all about how the judge-umpire analogy might be unfair to umpires too, but of course, you’re right!

    If the law were all so easy and clear, we wouldn’t need appeals courts or a federal judiciary at all. We could all just RTFM and get the same right answer, every time.

  19. Comrade PhysioProf on 14 Apr 2010 at 11:24 am #

    The framers and ratifiers of the Constitution and Bill of Rights would be astounded and horrified by the fact that this abomination called “originalism” is considered a respectable jurisprudential approach.

  20. Dickens Reader on 14 Apr 2010 at 11:29 am #

    Long time reader, first time comment. I just want to assert that Thomas Gradgrind did in fact realize the error in his method and regretted the pain and misery he inflicted on his children and the other students with his school of thought.

  21. Historiann on 14 Apr 2010 at 11:46 am #

    Dickens Reader–welcome. I haven’t read the book for a long time myself, so I don’t recall that–but that sounds like a typically schmaltzy Dickensian ending!

    Somehow, I don’t think that many “Originalists” plan to repent of their evil ways anytime soon.

  22. Susan on 14 Apr 2010 at 1:58 pm #

    Recently Woody Holton has put forward an alternative reading of Federalist 10 that I think is pretty convincing, particularly given what we know about many of the Founders’ anti-democratic tendencies. He argues that the “the spirit of faction” that federalism and divided powers was meant to control was the mobs of the propertyless against the propertied. Which is to say that Madison and others were hoping that a large country, large congressional districts, and a non-elected Senate would mean that only the best men (men of good reputation, propertied, upstanding etc.) would be able to win election in the House, not the rabble. Remember these are guys imbibing republican political theory that argues that only the virtuous should rule, and that only the propertied can be virtuous.
    So, depressingly, the “majority” likely to tyrannize the minority in Madison’s view is the precisely the powerless, propertyless underclasses against whom the current Court seems to rule.
    I’m not saying I like it, I’m just saying that Holton’s history forces us to rethink the traditional understanding of what Madison was really arguing in Federalist 10. It may not be as cheery and pluralist as we think it is.

  23. Comrade PhysioProf on 14 Apr 2010 at 4:21 pm #

    So, depressingly, the “majority” likely to tyrannize the minority in Madison’s view is the precisely the powerless, propertyless underclasses against whom the current Court seems to rule.

    Almost fifteen years ago I wrote a historiographical essay about Shay’s rebellion, but I can’t find the fucking thing. I can’t remember the details but I sort of vaguely recall that my thesis was that historical analysis of the significance of the mobs ranged from “salutary expression of the will of the people” to “uppity dirtbags going haywire” as then-current political sentiment ranged from populist to Whiggish.

  24. Susan on 14 Apr 2010 at 5:30 pm #

    (Another one)… I’m teaching English Legal History this semester, and my students have really “got” it, reading some of the judgments about general warrants from the 18th C. Since we spent time on Magna Carta, now they can see that a document that had one set of meanings in the 13th C is reused and reinterpreted in dramatically different ways.

    I commented that this was why I didn’t know of a historian who believed it was even possible to talk about original intent.

  25. Indyanna on 14 Apr 2010 at 6:22 pm #

    So I guess this means I can’t carry a crossbow in Hyde Park (or an ancient oaken bat in the “New” Yankee Stadium)? As Yogi Berra once said, “modernity is heck!”

  26. Comrade PhysioProf on 14 Apr 2010 at 6:48 pm #

    SPLOING!!!!!!!!!!!!