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Supreme immodesty: Why the justices play politics

By Stuart Taylor Jr.
Wednesday, July 14, 2010; A19

Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?

And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?

The justices strenuously deny voting their own policy preferences. So, are they insincere?

Well, no, except that none admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.

Even a rigorously apolitical justice passionately committed to "applying the law" would often find no clear law to apply.

Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences -- and precedents, which can be overruled.

But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.

First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.

Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.

Consider the landmark 5-to-4 ruling in 2008 that the ambiguously worded Second Amendment protects against the federal government an individual right to bear arms. (The same five justices held last month that gun rights also apply against states.)

All nine justices claimed to be following the Second Amendment's original meaning. Yet the bitter liberal-conservative split perfectly matched the factions' apparent policy preferences.

After reading and rereading the 154 pages of opinions to discern who was right about the original meaning, I saw it as a dead heat. So historical research provides no escape from subjectivity. And conservative originalists' claims of being deferential to democratic governance ring hollow after the two gun decisions and other recent rulings.

Third, even when the original meaning is clear, almost everyone rejects it as intolerable some of the time. For example, nothing in the original Constitution (which ratified slavery) or the 14th Amendment (which required only states to provide "equal protection") was originally understood to bar the federal government from discriminating based on race.

But this did not stop the court from striking down Congress's segregation of D.C. public schools in Bolling v. Sharpe, a 1954 companion case to Brown v. Board of Education. And almost everybody now agrees that the Constitution bars federal racial discrimination.

Fourth, the accretion of precedents contrary (or arguably contrary) to original meaning pervades almost every area of constitutional law. In case after case, justices must choose whether to stray ever farther from originalism or to overrule precedents.

Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?

This is not to suggest that judicial review is illegitimate. Americans count on the court to protect cherished rights, and the country needs an independent judiciary to check majoritarian tyranny.

The key is for the justices to prevent judicial review from degenerating into judicial usurpation. And the only way to do that is to have a healthy sense of their own fallibility and to defer far more often to the elected branches in the many cases in which original meaning is elusive.

Elena Kagan professed such a modest approach in her confirmation testimony. Yet so did the eight current justices, and once on the court, all eight have voted repeatedly to expand their own powers and to impose policies that they like in the name of constitutional interpretation.

Why so immodest? Perhaps because the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches' powers.

The writer is a contributing editor to Newsweek and National Journal and a nonresident fellow at the Brookings Institution. He is also co-author of "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case."

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