At USA Today, Glenn Reynolds: Ginsburg flap shows Supreme Court, justices are too important. From the introduction:
Ruth Bader Ginsburg has died, and the country — or at least its political class — is descending into what will no doubt be a multi-week screaming fit. In fact, the screaming has already begun.
But that fact tells us something about the state of our nation, and it’s not anything good. When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there’s something wrong with your political system. And when your judicial system can be redirected by such an event, there’s something wrong with your judicial system, too. …
Why does Justice Ginsburg’s replacement matter so much that even “respectable” media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburg’s replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.
That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.
The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.
That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.
And with an amusing proposal at the end. (Via Instapundit.)
I agree it’s a problem (though I’m less sure it’s a new one). So would originalism solve it (as some, though not Professor Reynolds, have suggested)? In part, yes. Originalism would surely help get the Court away from deciding societal issues based on policy intuitions.
For one thing, the Constitution’s original meaning simply does not speak to a wide range of social and political issues — leaving them through its silence to the political branches of the federal government or the states. In contrast, under living constitutionalism it’s easy enough to claim that most anything is unequal (violating equal protection) or unfair (violating due process). Of course, those claims might not succeed, but that’s the point: whether they succeed or not depends on the composition of the Court.
Further, originalism — despite claims to the contrary — does give fairly clear results on some sharply disputed issues. For example, I think the Constitution’s original meaning extends birthright citizenship to U.S.-born children of temporary visitors or undocumented aliens, and I’m pretty confident of an originalist Court upholding it. (Have I mentioned that I have an article coming out very soon on this issue?)
But President Trump and a number of conservative commentators think otherwise on policy grounds, and who knows what a conservative nonoriginalist Court might do with the issue. Originalism would take the politics out of such issues. And, relatedly, even when originalists disagree, they (one hopes) don’t divide on partisan or outcome-oriented lines but rather on different readings of the original sources.
But originalism doesn’t solve the problem in full. Professor Reynolds objects most strongly that the Court is taking too many issues away from the political branches. But most originalists have no problem with (and indeed encourage) the Court taking issues away from the political branches when the Constitution’s original meaning authorizes it.
Only originalism combined with super-strong deference to the political branches would accomplish the goal of avoiding judicial resolution of important social issues. And I think actually very few people favor that approach across the board. (I bet Professor Reynolds favors judicial intervention against the political branches in, for example, free speech, gun rights and many criminal procedure areas.)
In addition, originalism does not always lead to clear answers. Some constitutional provisions are difficult to understand at the most basic level. Even when a provision’s general outlines are clear, there may be issues of linedrawing and implementation. It will matter significantly how a nominee approaches these questions, even if we assume the nominee won’t be influenced by substantive preferences. And in facing a difficult question it’s hard to entirely shut out one’s substantive preferences, even with the best of intentions.
As a result, I think an originalist Court would continue to play an important role in resolving key societal questions, and that control over nominations would remain highly prized. It’s the price of constitutional democracy. But a shift to a more originalist Court would reduce at least some of the pathologies we now face.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.