The Imaginary Bugaboos of Conservative Judicial Rhetoric

Jay at STACLU has a post that is little more than a rote recitation of all the favorite conservative catchphrases about judicial nominations. It makes a good starting point for discussing the fact that the typical rhetoric we hear from conservatives on constitutional law references things that simply do not exist in any coherent manner. Here's a textbook example from his post of this imaginary rhetoric:

Getting judges that have a originalist interpretation of the Constitution should be of major importance to Conservatives in today's world of judicial activism.

And then, for some odd reason, a restatement of the exact same thing to start the very next paragraph:

The nomination of strict originalist to the bench should be one of the primary concerns for Conservatives that are concerned with the dangers of judicial activism in today's times.

Welcome to the Department of Redundancy Department. But there are two important things to note here. First, that there is no such thing as a "strict originalist"; they simply do not exist. Second, that the phrase "judicial activism" is nothing more than a subjective catchphrase that no serious scholar would use outside of the most narrow possible context. In an article in the Boston Globe that I quoted more than 2 years ago said:

Indeed, the charge of judicial activism has become a "ubiquitous epithet" and unhelpful "scare phrase," Georgetown law professor Peter Edelman recently noted in The Washington Post. Constitutional law scholars across the political spectrum tend to cringe at the way the phrase is used in public debate.

"It's almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about," says Harvard University constitutional scholar Laurence Tribe, who has spoken out in defense of the SJC ruling.

"Most people who use the term don't provide a coherent definition of it. It typically means judicial opinions with which they disagree," says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of "original intent" in Constitutional matters.

And they are all correct. The irony is that most conservatives who use the phrase are completely unaware that it originated as a catchphrase for the other side, as an epithet lobbed at conservative judges who kept striking down parts of FDR's legislative agenda in the New Deal era. There is a neutral definition of judicial activism, of course; the neutral definition merely compares how often a given court overturns legislative acts as opposed to upholding them. But this definition is neutral precisely because it makes no judgment on the question of whether those acts should or should not have been overturned.

Conservatives, of course, do not use the phrase in that sense. So what do they mean by it? Well, the rhetoric is generally used in relation to courts overturning the "will of the people" as expressed through their elected representatives. A good example is Bush's statement from the state of the union address in 2004:

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard.

But I would submit that pretty much anyone with an IQ over 8 can come up with lots of examples of the very same people who complain about judicial activism going to court to overturn laws "without regard for the will of the people", even when that will was legislated by direct popular referendum. The two most obvious recent examples are the Oregon assisted suicide law and California's medical marijuana law. At the same time that Bush was using the rhetoric above, he was ordering the DOJ to file suits to overturn those laws, both of which were passed by popular referendums and by wide margins (twice, in the case of the Oregon law).

The fact is that they use this rhetoric inconsistently and incoherently, reducing it to nothing more than an empty catchphrase. They invoke the "will of the people" when it's on their side, and they speak with great feigned outrage about "unelected judges" establishing "judicial tyranny"....right up until a legislature passes a law they don't like. Then they run directly to the courts to file a suit to ask those unelected judges to throw out that law, no matter how much public support it has.

The same is largely true when conservatives use phrases like "strict constructionist" or strict originalist". There simply is no such thing. Even Justice Scalia, who claims to be an advocate of originalism and is regarded as the scourge of legal realists everywhere, throws his originalist theory of interpretation right out the window when it reaches a result he doesn't like. Randy Barnett, a genuine originalist (though of the liberal originalism variety), points out many examples from Scalia's own words in a recent law review article available at SSRN.

In the wake of Scalia's vote in Raich, where he offered up an obscenely non-originalist reading of both the interstate commerce clause and the necessary and proper clause, even conservative scholar Stephen Bainbridge wrote that "It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence." Likewise, David Bernstein, writing at Volokh, essentially declares conservative originalism DOA:

Randy's post reminded me that I've been wanting to note that conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia's "fainthearted" originalism. If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents."...

I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible (In Raich, Randy certainly provided Scalia with some easy ways to distinguish Wickard, but I suspect Scalia felt that Wickard should either be interpreted rather broadly, or overturned entirely, and he opted for the former). But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."...But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

The reason why there will never again be a "strict originalist" judge is because strict originalism, of the conservative variety (original meaning or original expected application), will often lead to heinous results that no one wants to defend. Under a strict originalist perspective, one would have to overturn, for example, Loving v Virginia, the case that struck down state laws banning interracial marriage. Where is the serious person (leaving David Duke out of the equation) who would argue that this decision was wrong? They simply don't exist. The same is true, to a slightly lesser degree, of Brown v Board of Education. No judge is going to rule in such a manner, regardless of whether it's the proper outcome of originalist reasoning. When it leads to heinous results they will, like Scalia, simply jettison their judicial theory and decide instead to use a different theory of interpretation to reach a non-heinous result. But that fact means that there is no credible or coherent distinction between an "originalist" and a legal realist or living constitution advocate.

The other sense in which conservatives often use the phrase "judicial activist" is in the "inventing rights" sense. They argue that since the constitution doesn't enumerate a specific right, courts are wrong to apply broader concepts like a right to privacy to specific areas not explicitly mentioned in the text. This argument has been made against Griswold v Connecticut ("there is no right to buy contraception mentioned in the constitution"), against the recent Lawrence v Texas decision ("there is no right to engage in sodomy mentioned in the constitution"), and yes, against Loving v Virginia - there is no right to marry who you please in the constitution.

Well guess what? They're right. None of those things are mentioned in the constitution specifically. But the 9th amendment clearly makes explicit that the Bill of Rights is not an attempt to list every possible right an individual has. Indeed, how could it possibly be? Thus, they said, the enumeration of certain rights should not be taken as evidence that a given right does not exist and may be regulated away by the legislature. In other words, there are unenumerated rights that are "retained by the people".

The irony is that people like Bork, who call themselves originalist, read the 9th amendment out of the constitution entirely; it is an "ink blot", as Bork put it in his confirmation hearings, into which one can read whatever they want and therefore it cannot be used to argue for any particular right. But the courts, in the last century, began to take unenumerated rights more seriously. And the only time that conservatives complained about that is when they opposed the right being asserted. Glenn Reynolds (yes, the Instapundit) wrote an excellent law review article in 1992 about this, in which he points out that conservatives have often cheered the very sort of penumbral reasoning that they derided in Griswold:

Recent years have seen considerable criticism and hostility regarding efforts of both courts and commentators to derive constitutional rights from sources other than explicit constitutional language. Nearly all of that criticism has emanated from those generally characterized as "right wing" or "conservative," and it concerns case in which the outcome is generally regarded as "left wing" or "liberal."

One might imagine that the unidirectional nature of this criticism stems from a similar tendency in the way the Constitution is interpreted, with the left relying more on extratextual sources of authority and loose interpretations of constitutional language, and the right rejecting these methods in favor of strict reliance on explicit textual language and original understanding. Interestingly, however, this turns out not to be the case. Upon even a cursory examination, it becomes apparent that judges and scholars on the right have been as willing as those on the left to rely on reasoning and authority that are not explicit in the language of the Constitution to reach ends consistent with their desires. Nevertheless, uses of what I call "penumbral reasoning" to obtain "right wing" results have not generated the kind of criticism from advocates of "strict construction" and "original intent" theory that has appeared when the results have been otherwise.

Reynolds goes on to point out that there are numerous cases where the court has applied broadly worded rights to specific situations not explicitly mentioned because to do otherwise would be to leave the broadly stated right unsecured. And he quotes Justice Douglas' decision in Griswold where he points out several of those cases:

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice--whether public or private or parochial--is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters [268 U.S. 510 (1925)], the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska [262 U.S. 390 (1923)], the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143 [(1943)]) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195 [(1952)])--indeed, the freedom of the entire university community...Without those peripheral rights the specific rights would be less secure.

Reynolds then goes on to list numerous instances where the same type of legal reasoning is used without hearing cries of "judicial tyranny" or "unprincipled judicial overreach" from the conservatives. Their outrage at abstracting the text is selective and seems to be triggered only when a right is being extended to someone of whom they disapprove. Or as Peter Gomes, the Plummer Professor of Christian Morals at Harvard, put it,

"Judicial tyranny" is a phrase usually heard from those whose prejudices have not been sustained by a court's decision.

Precisely right. It's time to put away these silly catchphrases that really don't mean anything. No one serious about constitutional interpretation finds them anything but laughable. They are purely partisan buzzwords designed to make the person using them sound far more credible than they actually are. In the world of legal scholarship, they mean nothing.

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My thanks to Ed Darrell for pointing me to an article by Peter Gomes in the Boston Globe. Gomes is the Plummer Professor of Christian Morals and minister of the Memorial Church at Harvard. Of the recent court cases involving gay marriage, he writes:We have seen this before. When the courts…
David Bernstein and Randy Barnett have interesting posts up at Volokh about the growing split among conservative originalists. Barnett's post came first and he notes that when conservatives today invoke the idea of "judicial restraint" in opposition to judges "legislating from the bench", they are…
The Boston Globe had an article written by Dave Denison about judicial activism on Sunday. The results were mixed. On the one hand, Denison does a fine job of illustrating what I have said previously (here and here, among other essays), that claims of "judicial activism" rarely have any objective…
Indian Cowboy left a comment on a thread below and I'm moving it up here so it doesn't get lost. It was in response to some of the conservative catchphrases that I and others came up with for the refrigerator magnet game. In particular, he seems to be responding to two catchphrases I pointed out, "…

"It's time to put away these silly catchphrases that really don't mean anything."

You're familiar enough with Jay's writing to know that, in all honesty, without catchphrases and cliches, he doesn't have a whole lot to offer as an essayist. He doesn't strike me as either the shrewdest analyst or the most objective columnist, so were he to retire the half-dozen sound bytes upon which he and his cohorts consistently rely, he really would have little or nothing to say. As far as whether "pretty much anyone with an IQ over 8..." disqualifes the whole slate of contributors at that site, well, this is a judgment call at worst.

As far as activism and constitutional interpretation themselves are concerned, I'm curious as to how the same fun bunch that's fond of pointing out that the phrase "church-state separation" doesn't appear explicitly in the Constitution can reconcile the supposed importance of this with the fact that abortion, homosexuality and stem-cell research also weren't directly addressed by the founders, as someone pointed out to Jay. Paradoxical as it would seem to a visiting space alien, though, the people who cannot or will not think are the ones who come up with the most self-assured answers to everything.

What a long post. I was falling asleep. My definition of judicial activism is when the judge steps outside of their roles of interpretation into legislating from the bench. This happens on both sides of the political spectrum and it needs to be reduced on both sides. An activist judge is not one that makes rulings I don't like, but one that makes rulings for what they like personally instead of interpreting the law strictly and unbiased. A judge that uses foreign law for example is clearly using examples outside of the Constitution or even documents that inspired the Constitution in order to gain an end result to their personal opinion. You could grab any foreign law you wanted that was in agreement with your own beliefs, despite the fact that it is opposite to the intent of the Constitution.

What I want to have is judges that are truly try to stick with the spirit of the Constitution and not what they wish it said. As far as gay rights, abortion, and stem cells..it is my opinion those decisions should be left up to the States unless the Constitution is changed by the legitimate methods provided to do so by the original founders. The abortion issue is debatable in the context of the right to life.

Jay, do you have examples of judges making rulings based on what they personally like?

Jay wrote:

My definition of judicial activism is when the judge steps outside of their roles of interpretation into legislating from the bench. This happens on both sides of the political spectrum and it needs to be reduced on both sides. An activist judge is not one that makes rulings I don't like, but one that makes rulings for what they like personally instead of interpreting the law strictly and unbiased.

The problem is that this is subjective enough to cover pretty much any ruling you disagree with. It's not an objective, coherent definition. What precisely is the difference between "interpreting the constitution" and "legislating from the bench". Standard conservative rhetoric generally is aimed in this regard at rulings that "invent new rights" not specifically named in the Constitution - but only, of course, if they disagree with those rights. They decry Griswold or Lawrence, but never Pierce (which established a right to educate one's children in private schools) or Meyer (the right to choose one's profession). There is no "right to travel" mentioned in the Constitution, yet find me an "originalist" who opposes Crandall or Shapiro. So we're back to my original point: it's only "judicial activism" or "inventing a new right" if the person speaking disagrees with that right; when they agree with it, then it's routine interpretation. Unless you can provide us with a clear delineation of the difference between "interpreting" and "legislating from the bench" that can be applied consistently and coherently and that leads logically to the conclusions you reach in particular cases, we can only conclude that no such distinction exists other than on a purely subjective level.

A judge that uses foreign law for example is clearly using examples outside of the Constitution or even documents that inspired the Constitution in order to gain an end result to their personal opinion. You could grab any foreign law you wanted that was in agreement with your own beliefs, despite the fact that it is opposite to the intent of the Constitution.

This actually points up another bit of hypocrisy in conservative rhetoric, when it comes to foreign law. Conservatives are the first ones to turn to the English common law to justify their arguments (see Roy Moore's outrageous use of common law to justify throwing gays in jail or executing them). Yet what is common law? Not only is it foreign law (remember, we overthrew the British) but it's also judge-made law. In the couple of cases recently where the court cited foreign law, it was emphatically not used as a basis for the decision. The text of the rulings made that quite clear. All of this hysteria over foreign law is just that, hysteria.

More importantly, this notion of judges reaching rulings that fit their opinions is true for every judge, everywhere. Even Scalia, that alleged champion of originalism, who excoriates his fellow judges for subjectively reaching the conclusions they want to reach and then picking and choosing their theory of interpretation to justify it, has clearly and repeatedly done the very same thing himself. He says that it's folly for a court to consider legislative intent in their ruling...unless statements of legislative intent support a conclusion he likes (see Edwards v Aguillard, where he wants to say teaching creationism is okay, so he refers to the legislative history of the bill and says that since the legislature offered a secular purpose, the court has to accept it). He says that he is a textualist who applies the tests of that discipline regardless of the outcome. Yet in Raich he offered up a bizarre opinion that completely ignored the original meaning of both the commerce clause and the necessary and proper clause so that he could justify striking down California's medical marijuana law. His concurrence didn't even address the original meaning of the commerce clause. David Bernstein of the Volokh conspiracy said at the time:

This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

And he was absolutely right. And remember, this is the alleged champion of originalism and textualism. Thomas gets closer to being a genuine originalist than Scalia, but even there he butts strongly up against your objection to useing the "documents that inspired the Constitution"; Thomas is a staunch advocate (as am I) of using the Declaration to guide interpretation of the Constitution. And that, I would argue, is a truly originalist position. But you and many other conservatives don't like that because, again, it leads to results you don't like, particularly to the support of many unenumerated rights that you think shouldn't exist.

So frankly, I just don't believe you when you say that you really just want judges who will stick to the Constitution even if it conflicts with what they wish would happen. I think your position is every bit as subjective as you claim your opponents' position is. And I think the evidence, detailed above, supports me 100% in that regard.

Jay:

"What a long post. I was falling asleep."

Well, at least you admit it. If this is a habit of yours, it helps explain why so much of the stuff on your site is under-researched or not researched at all. People who comment fervently on political matters are advised not to just skim if they wish to create cogent arguments.

Ed:

"This actually points up another bit of hypocrisy in conservative rhetoric, when it comes to foreign law. Conservatives are the first ones to turn to the English common law to justify their arguments..."

What I'm reminded of here is the fondness conservatives exhibit toward social contracts such as the Mayflower Compact (a document signed in 1620 by British separatists; America would not become a nation for another 150+ years) and the prayers that even today open legislative sessions of Congress -- a practice which is a holdover from the first Continental Congress in 1774 and ultimately from English tradition, and one that probably shouldn't be continued in light in the First Amendment. Many on the right are exquisitely fond of pointing out strictly foreign-born concepts that allegedly underlie the Constitution, yet balk openly at the idea of looking to laws overseas when resultant views don't favor the right.

Jay:

"What a long post. I was falling asleep."

Well, at least you admit it. If this is a habit of yours, it helps explain why so much of the stuff on your site is under-researched or not researched at all. People who comment fervently on political matters are advised not to just skim if they wish to create cogent arguments.

Ed:

"This actually points up another bit of hypocrisy in conservative rhetoric, when it comes to foreign law. Conservatives are the first ones to turn to the English common law to justify their arguments..."

What I'm reminded of here is the fondness conservatives exhibit toward social contracts such as the Mayflower Compact (a document signed in 1620 by British separatists; America would not become a nation for another 150+ years) and the prayers that even today open legislative sessions of Congress -- a practice which is a holdover from the first Continental Congress in 1774 and ultimately from English tradition, and one that probably shouldn't be continued in light in the First Amendment. Many on the right are exquisitely fond of pointing out strictly foreign-born concepts that allegedly underlie the Constitution, yet balk openly at the idea of looking to laws overseas when resultant views don't favor the right.

What a long post. I was falling asleep.

This, of course, says MUCH more about the poster than about Ed or his post.

What I want to have is judges that are truly try to stick with the spirit of the Constitution and not what they wish it said.

Who's interpretation of the Constitution?

"Getting judges that have a originalist interpretation of the Constitution should be of major importance to Conservatives in today's world of judicial activism."

Originalists like Bork, I presume?

Dissolving the Inkblot: Privacy as Property Right
Cato Policy Report, January/February 1993
...To the liberal claim that laws against contraception and abortion fall to the due process clause of the Fourteenth Amendment, Judge Robert Bork responds that due process refers only to procedures and that "substantive due process" is a contradiction in terms. Finally, Bork finds no case for privacy in the Ninth Amendment, which he says is as obscure as it would be had an inkblot covered it on the original parchment.
...Bork's real objection is to any holistic reading of the Constitution. Instead, he favors what John Hart Ely called a "clause-bound interpretation." The idea is to read each guarantee in the Bill of Rights as if no others existed, taking care not to acquire any cumulative sense of what the Framers had in mind. That is a dubious theory of interpretation, but in at least one case Bork is not "clause-bound" enough: he prefers to read the Constitution as if the Ninth Amendment wer not there.
...Thus, both the liberals and the conservatives misunderstand privacy. The conservatives engage in a narrow and unnatural reading of the Constitution in order to avoid seeing what they do not wish to see, while the liberals find in the Constitution not penumbras but a Rorschach test that reveals only what they wish to see. In both cases it comes down to an inkblot. Both approaches allow their adherents to disparage most freedoms and exalt the few freedoms allowed by their respective moral and political philosophies.

"What a long post. I was falling asleep."

You will do better if you can learn to follow an argument that is longer than a sound bite.

"My definition of judicial activism is when the judge steps outside of their roles of interpretation into legislating from the bench."

BZZZZZZZT! Catchphrase alert! What does "legislating from the bench" actually mean, Jay? I know of no US judge who has ever ordered new verbage be written into the statutes.

"An activist judge is not one that makes rulings I don't like, but one that makes rulings for what they like personally instead of interpreting the law strictly and unbiased."

Like who, Jay? Can you actually name names?

Jay? Hello?